RAJIV GANDHI SCHOOL OF INTELLECTUAL PROPERTY LAW

PRESENTATION ON APPEALABLE ORDERS

IN CODE OF CIVIL PROCEDURE,1908
SUBMITTED BY:-
SAURABH SAGAR
17IP63025
APPEAL-A STATUTORY RIGHT

1) The expression appeal has not been defined in the code of civil procedure.
2) It is certainly an expression which gives solace to the losing party in the suit.
3) It is not a right available to all the litigant who loses the case. the right of appeal is
a statutory right and not a natural or inherent right of the litigating parties
 ORDER & DECREE

Decree:

1. A decree is an adjudication which conclusively determines the rights of the parties

with regard to any or all matters in controversy.

2. A decree can only originate from a suit, i.e. a proceeding commenced by plaint.

3. Except in certain suits, where two decrees (One preliminary and other final) are
passed, in every suit, there is only one decree.
Order:

1. An Order, on the other hand, may or may not finally determine the rights of
the parties.

2. An Order may originate from a suit, as well as from any other proceeding
commenced by an application.

There may be many Orders passed in a suit. An order may originate from a
suit, as well as from any other proceeding commenced by an application.

3. There may be many Orders passed in a suit.

 SECTION-104
ORDER FROM WHICH APPEAL LIES
(1) An appeal shall lie from following orders and save as otherwise expressly provided by in the
body of this code or by any law for the time being in force, from no other orders-
(if) an order under section 35A;
(ffa) an order under section 91 or section 92 refusing leave to institute a suit of the nature referred to
in section 91 or section 92, as the case may be;
(b) an order under section 95;
(h) an order under any of the provisions of this Code imposing a fine or directing the arrest or
detention in the civil prison of any person except where such arrest or detention is in execution of a
decree;
(i) any order made under rules from which an appeal is expressly allowed by rules:
Provided that no appeal shall lie against any order specified in clause (if) save on the ground that no
order, or an order for the payment of a less amount, ought to have been made.
(2) No appeal shall lie from any order passed in appeal under this section
ORDER XLVIII- APPEAL FROM ORDERS

- An appeal shall lie from the following orders under the provisions of section 104, namely: —
(a) an order under rule 10 of Order VII returning a plaint to be presented to the proper court except
where the procedure specified in rule 10A of Order VII has been followed;
(c) an order under rule 9 of Order IX rejecting an application (in a case open to appeal) for an order
to set aside the dismissal of a Suit;
(d) an order under rule 13 of Order IX rejecting an application (in a case open to appeal) for an Order
to set aside a decree passed e parte;

(f) an order under rule 21 of Order XI;

(i) an order under rule 34 of order XXI on an objection to the draft of a document or of an
endorsement;
(j) an order under rule 72 or rule 92 of Order XXI setting aside or refusing to set aside a sale;
(ja) an order rejecting an application made under sub-rule (1) of rule 106 of order XXI, provided that
an order on the original application, that is to say, the application referred to in sub-rule (1) of rule
105 of that order is appealable;
(k) an order under rule 9 of Order XXII refusing to set aside the abatement or dismissal of a suit;
(l) an order under rule 10 of Order XXII giving or refusing to give leave;
(n) an order under rule 2 of Order XXV rejecting an application (in a case open to appeal) for an
order to set aside the dismissal of a suit;
(na) an order under rule 5 or rule 7 or Order XXXIII rejecting an application for permission to sue as
an indigent person;
(p) order in interpleader suits under rule 3, rule 4 or rule 6 of Order XXXV;
(q) an order under Rule 2, Rule 3 or Rule 6 of Order XXXVIII;
(r) an order under Rule 1, Rule 2, Rule 2A Rule 4 or Rule 10 of Order XXXIX;
(s) an order under Rule 1 or Rule 4 of Order XL;
(t) an order of refusal under Rule 19 of Order XLI to re-admit, or under Rule 21 of Order XLI to re-
hear, an appeal;
(u) an order under Rule 23 or Rule 23A or Order XLI remanding a case, where an appeal would lie
from the decree of the Appellate Court;
(w) an order under Rule 4 of Order XLVII granting an application for review.
UOI VS. MOHINDRA SUPPLY COMPANY
A.I.R. 1962 S.C. 256

The Supreme Court. in this case has Observed that the intention of the
legislature in enacting sub-section (I) Of Section 104 Of the Code is
emphasized by Section 4 Of the Code which provides that in the absence of
any provision to the contrary, nothing in the Code is intended to limit or
otherwise affect any special legislation or power conferred by or under any
law for the time being in force. Hence, one should bear in mind that by virtue
of Section 104, C.P.C., all appeals against the orders indicated in Order 43,
Rule 1 of the Code will lie to the appellate court having territorial and
pecuniary jurisdiction.
 APPEAL PROVIDED FOR UNDER
DIFFERENT STATUTES

The words "save as otherwise express” provided in the body of the Code or
by any law for time being inforce" as used in sub-section (I) Of Section 104
of the Code make it clear that this provision will not in any way restrict the
appeals filed against the orders which are made appealable under different
Statutes. The remedy of appeal is a creation of a statute.

For e.g- A Letters Patent Appeal is the creation of a right under the Letters
Patent of the High Court and is well saved by the saving clause Contained in
sub-section (I) of Section 104 of the Code.
SUBAL PAUL VS. MALINA PAUL A.I.R. 2003
S.C. 1928
By reason of Section 104 of the Code Of Civil procedure the bar of appeal under a
special statute is saved. A plain reading of Section 104 Of the Code Of Civil
Procedure would show that an appeal shall lie from an appealable order and no other
order save as otherwise expressly provided in the body Of this Code or by any law for
the time being in force. Section 104 Of the Code merely recognizes appeals provided
under special statute. It does not create a right of appeal as such. It does not, therefore,
bar any further appeal also, if the same is provided for under any other Act, for the
time being in force.

Whenever the Statute provides such a bar, it is so expressly stated, as would appear
from Section 100-A of the Code Of Civil procedure.
 SECTION 105-OTHER ORDERS

(1) Save as otherwise expressly provided, no appeal shall lie from any order
made by' a Court in the exercise of its original or appellate jurisdiction; but,
where a decree is appealed from, any error, defect or irregularity in any order,
affecting the decision of the case, may be set forth as a ground of objection in
the memorandum of appeal.

(2) Notwithstanding anything contained in sub-section (I), where any party

aggrieved by an order of remand from which an appeal lies does not appeal
therefrom, he shall thereafter be precluded from disputing its correctness."
This section provides that no appeal shall lie from any order made by a Court in a
suit or appeal unless right of appeal from any such order is expressly given by the
provisions of the Code. Section 104 and Order 43 Rule I expressly mention the
orders which are appealable and unless an order falls within any of the provisions of
the Sections mentioned above, no appeal lies. The orders which do not fall within
the provisions of the above two sections are non-appealable orders. This section
applies equally to both the appealable and non-appealable orders.
Satyadhyan Ghosal Vs. Smt.Deorajin Debi A.I.R.
1960 S.C. 941

While interpreting Section 105 of the Code, the Supreme Court, in this
case observed that:- “ " It is clear therefore that an interlocutory order
which had not been appealed from either because no appeal lay or even
though an appeal lay an appeal was not taken could be challenged in an
appeal from the final decree or order. A special provision was made as
regards orders of remand and that was to the effect that if an appeal lay
and still the appeal was not taken the correctness of the order of remand
could not later be challenged in an appeal from the final decision.
THANK YOU!!