Notes on appeal from orders

 

1) Important provisions of S 104 of CPC- appeals from orders

https://www.lawweb.in/2026/04/important-provisions-of-s-104-of-cpc.html

2) Important provisions of Order 43 Rule 1 CPC - Appeal from orders

https://www.lawweb.in/2026/04/important-provisions-of-order-43-rule-1.html

3) S 105 of CPC explained- Appeal against orders

https://www.lawweb.in/2026/04/s-105-of-cpc-explained.html

4) Whether the order of appointment of court commissioner can be challenged in appeal from decree?

https://www.lawweb.in/2026/04/whether-order-of-appointment-of-court.html

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Whether the order of appointment of court commissioner can be challenged in appeal from decree?

  An order appointing a Court Commissioner can generally be challenged in the appeal from the decree, if that interlocutory order affected the decision of the case. The relevant provision is Section 105 CPC, because an order appointing a commissioner is ordinarily not an independently appealable order under Order 43 Rule 1 of CPC.

Relevant provision

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Important provisions of Order 43 Rule 1 CPC - Appeal from orders

 Order 43 Rule 1 CPC is the practical list of appealable orders. In easy words, it tells you which interlocutory or procedural orders can be challenged immediately by filing an appeal under Section 104 CPC.

Core idea

Not every order passed by a civil court is appealable. Order 43 Rule 1 picks out only certain important orders and says that an appeal will lie from them.

So, for interview purposes, remember this line: Section 104 gives the right, and Order 43 Rule 1 gives the list.

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Important provisions of S 104 of CPC- appeals from orders

 Section 104 CPC deals with appeals from orders. In simple words, it tells you which orders can be challenged immediately in appeal, and from no other orders unless the Code or another law specifically allows it.

Core idea

A decree is generally appealed under other provisions, but Section 104 is about appealable orders. It creates a limited right of appeal so that parties do not file appeals against every small interim order and delay the suit.

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What remedy is available against consent decree to an aggrieved third party?

Still there could be one more situation, where the third party who was not the party to suit or the party to the compromise but had an interest in the subject matter of the compromise, is aggrieved by the decree passed by the Court under Order XXIII, Rule 3 on the basis of the compromise arrived at between the parties to the suit. So what remedy would be available to him? It cannot be gainsaid that the decree based on the compromise between the parties under Order XXIII, Rule 3, if remains unchallenged would be a "consent decree" binding to the parties to suit. However, when the person aggrieved is third party who was neither a party to the suit nor a party to the compromise on the basis of which the decree was passed by the Court in the suit, would not be bound by such decree. Such a decree could not be said to be a "consent decree" qua such third party, and therefore, neither the bar contained in Section 96(3) nor the bar under Rule 3A of Order XXIII would be application to him. Such an aggrieved party, with the leave of the Court can always file an appeal under Section 96(1) against the decree passed by the Court on the basis of the compromise, and can contest the decree on the ground that the compromise should, or should not have been recorded by the Court in view of Rule 1A(2) of Order XLIII of CPC. When the third party is vitally and adversely affected by the decree passed by the Court under Order XXIII, Rule 3 on the basis of the compromise arrived at between the parties to the suit on the subject matter or otherwise of the suit, he can certainly, with the leave of the appellate Court, prefer an appeal and can contest such a decree passed under Order XXIII, Rule 3. One of the grounds to contest the decree could be that such a compromise should or should not have been recorded by the Court.

31. At this juncture, the word "party" used in Sub-rule (1) and the word "appellant" used in Sub-rule (2) of Rule 1A of Order XLIII assume importance. The Sub-rule (1) of Rule 1A relates to the order passed against the 'party' to the suit, and the appeal filed by 'such party', whereas the Sub-Rule (2) of the said Rule 1A relates to the appeal filed by the 'appellant'. Such appellant may or may not be a party to the suit. The Sub-rule (2) is not confined to the appeal filed by the "party" to the suit. Hence, the third party, in the appeal against the decree passed in the suit under Rule 3 of Order XXIII can also contest such decree on the ground that such a compromise should not have been recorded.

32. In the opinion of the Court, such an aggrieved third party would also have an option to file an application for Review of the order recording the compromise or for Review of the decree based on the compromise between the parties to the suit, under Section 114 read with Order XLVII, Rule 1 of CPC, if the conditions precedent mentioned therein are satisfied. It has been held by the Supreme Court in case of Board of Control for Cricket, India Vs. Netaji Cricket Club, reported in MANU/SC/0019/2005 : AIR 2005 SC 592, that an application for Review under Order XLVII Rule 1 would be maintainable not only upon discovery of a new and important piece of evidence, or when there exists an error apparent on the face of record but also if the same is necessary on account of some mistake or for any other sufficient reason. What would constitute sufficient reason would depend upon facts and circumstances of each case. The words "sufficient reason" in Order XLVII, Rule 1 are wide enough to include a misconception of fact or law by a Court or by an advocate. An application for review may be necessitated by way of invoking he doctrine "actus curiae neminem gravabit", which means that the act of the Court shall prejudice no one. Therefore, it any person considers himself aggrieved by the order or decree passed under Order XXIII, Rule 3 may for sufficient reason apply for review of such decree or order under Order XLVII, Rule 1, subject to the conditions mentioned therein. When an application for review is granted, the Court may at once re-hear the case or make such order in regard to the rehearing as it thinks fit, as contemplated in Rule 8 of Order XLVII of CPC.

 If the aggrieved party was not the party to the suit, the remedy available to him to challenge the decree passed by the Court on the basis of compromise between the parties to the suit (consent decree), would be to file an appeal under Section 96(1) of CPC, with the leave of the appellate Court, or to file a review application before the Court, which passed the decree, as may be permissible under Section 114 read with Order XLVII of CPC.

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/Appeal from Order No. 33 of 2017,

Decided On: 28.08.2019

 Sakina Sultanali Sunesara (Momin) Vs.  Shia Imami Ismaili Momin Jamat Samaj 

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Whether order of return of plaint is decree?

By order dated 3rd March, 2014, the learned Judge of the City Civil Court decided preliminary issue of jurisdiction against the plaintiffs i.e. present appellants and ordered that the plaint be returned to the plaintiffs for presentation before appropriate Court. Against the said order, present Appeal from Order is filed.

2. The learned counsel for the respondent objected the maintainability of Appeal against the said order and contended that though by the said order plaint is returned, it not to be construed as order passed under Order VII Rule 10 of the Code of Civil Procedure (for short called as, "Code"), but it is in fact an order of rejection of the plaint under Order VII Rule 11 of the Code or alternatively under Order XIV Rule 2 of the Code and hence the First Appeal lies against this order and not an Appeal from Order.

3. The order of return of plaint under Order VII Rule 10 of the Code, if passed then not a First Appeal under Order XLI, but an Appeal against Order under Order XLIII is to be filed. Return of plaint is not a decree though reasons in brief are required to be recorded in the said order.

IN THE HIGH COURT OF BOMBAY

Appeal From Order No. 415 of 2014 and Civil Application No. 469 of 2014

Decided On: 30.01.2015

 Chandra Prem Shah Vs. K. Raheja Universal Pvt. Ltd. and Ors.

Hon'ble Judges/Coram:

Mridula Bhatkar, J.

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Whether appeal is maintainable if miscellaneous application is dismissed in default?

The statutory provision of Order XLIII Rule 1(c) and 1(d) Code of Civil Procedure uses the words "rejecting an application". When the appeal is provided on rejection of an application, we need not read any further pre-condition in the word rejecting. When the right of appeal has been given on "rejecting" an application the said right cannot be read to limit the right of appeal only when application is rejected on merit. Taking any such interpretation will be nothing but adding words to statute which is clearly impermissible.

22. Full Bench of Madhya Pradesh High Court in Nathu Prasad (supra) case had occasion to consider the words "rejecting an application" as contained in Order XLIII Rule 1(c) Code of Civil Procedure. After considering the earlier judgments of the different High Courts the Full Bench opined as follows:

...In our opinion, there is nothing in the wording of Order 43 Rule 1(c), Code of Civil Procedure to restrict it to rejection on merits. The words "rejecting an application" are comprehensive enough to include dismissal for default on rejection, in any other situation whatever.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 9409 of 2017 (Arising out of SLP (C) No. 28713 of 2013)

Decided On: 21.07.2017

Jaswant Singh and Ors. Vs. Prakash Kaur and Ors.

Hon'ble Judges/Coram:

A.K. Sikri and Ashok Bhushan, JJ.

Citation: (2018) 12 SCC 249

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Whether order passed in application for temporary injunction U/S 9A(2) of CPC is appealable?

Keeping the above principle in mind it has to be held that the prayer for temporary injunction made by the plaintiff in the application (Exh. 50) pending determination of the issue as to the jurisdiction of the Court is nothing but the interim relief sought in aid of the final relief prayed for by the plaintiff by the application (Exh. 37). In the application (Exh. 37), the plaintiff prayed for interim order restraining the defendants from undertaking any construction over the suit property. By the application (Exh. 50) the plaintiff sought the same interim relief restraining the defendant from undertaking any construction over the suit property till adjudication of the application (Exh. 13) filed by the defendant. It is clear that the plaintiff had filed application (Exh. 50) only to seek interim relief pending the adjudication of the objection raised by the defendant that the Court has no jurisdiction to entertain and decide the civil suit. If examined from this angle, I am of the view that separate application under Section 9A(2) of the Code of Civil Procedure is not required and the Court can grant interim relief in terms of the prayer made in the substantive application filed under Order 39 of the Code of Civil Procedure till adjudication of the issue of jurisdiction of the Court to entertain and decide the civil suit. Therefore, the order passed on application (Exh. 50), which, though styled as application under Order 9A(2) read with Section 151 of the Code of Civil Procedure, is in effect an order passed under Order 39 of the Code of Civil Procedure and it will be appealable under Order 43 Rule 1(r) of the Code of Civil Procedure.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition No. 7884 of 2017

Decided On: 04.01.2018

Anand Vs. Shewalkar Developers Ltd.

Hon'ble Judges/Coram:

Z.A. Haq, J.

Citation: 2018 (2) MHLJ 381

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Whether high court can decide appeal on merit if it was preferred against order of remand?

The High Court failed to see that when the first Appellate Court itself did not decide the appeal on merits and considered it proper to remand the case to the Trial Court, a fortiori, the High Court had no jurisdiction to decide the appeal on merits. Moreover, Order 43 Rule 1(u) confers limited power on the High Court to examine only the legality and correctness of the remand order of the first Appellate Court but not beyond that. In other words, the High Court should have seen that Order 43 Rule 1(u) gives a limited power to examine the issue relating to legality of remand order, as is clear from Order 43 Rule 1(u) which reads thus:- “1(u) an order under rule 23 or rule 23A of Order XLI remanding a case, where an appeal would lie from the decree of the Appellate Court”

25) It is well settled law that the jurisdiction to decide the appeal on merits can be exercised by the Appellate Court only when the appeal is filed under Section 96 or 100 of the Code against the decree. Such was not the case here.

Reportable

Supreme Court of India

J. Balaji Singh vs Diwakar Cole & Ors on 24 April, 2017

Bench: R.K. Agrawal, Abhay Manohar Sapre

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Whether appeal is maintainable if trial court fails to decide injunction application after granting exparte injunction?

Section 104 of the Code says that an appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders:

(i) any order made under rules from which an appeal is expressly allowed by rules.

Order 43 Rule 1 says that: An appeal shall lie from the following orders under the provisions of Section 104 namely;

(r) An order under Rule 1, Rule 2, Rule 2A, Rule 4 or Rule 10 of Order 39.

Order 39 Rule 1 says thus: 1. Where in any suit it is proved by affidavit or otherwise -

(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree or (b) that the defendant threatens, or intends to remove or dispose of his property with a view to defrauding his creditors, (c) that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit, the Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property or disposition of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit as the Court thinks fit, until the disposal of the suit or until further orders.

It cannot be contended that the power to pass interim ex parte orders of injunction does not emanate from the said Rule. In fact, the said rule is the repository of the power to grant orders of temporary injunction with or without notice, interim or temporary, or till further orders or till the disposal of the suit. Hence, any order passed in exercise of the aforesaid powers in Rule 1 would be applicable as indicated in Order 43 Rule 1 of the Code. The choice is for the party affected by the order either to move the appellate court or to approach the same court which passed the ex parte order for any relief.

Learned Senior Counsel for the respondents then contended that an order granting injunction without complying with the requisites envisaged in Rule 3 of Order 39 be void. Rule 3 reads thus: The Court shall in cases, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction direct notice of the application for the same to be given to the opposite party:

[Provided that, where it is proposed to grant an injunction without giving notice of the application to the opposite-party, the Court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant

(a) to deliver to the opposite-party, or to send to him by registered post, immediately after the order granting the injunction has been made, a copy of the application for injunction together with-

(i) a copy of the affidavit filed in support of the application; (ii) a copy of the plaint; and (iii) copies of documents on which the applicant relies, and

(b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.

What would be the position if a court which passed the order granting interim ex parte injunction did not record reasons thereof or did not require the applicant to perform the duties enumerated in clauses (a) & (b) of Rule 3 of Order 39. In our view such an Order can be deemed to contain such requirements at least by implication even if they are not stated in so many words. But if a party, in whose favour an order was passed ex parte, fails to comply with the duties which he has to perform as required by the proviso quoted above, he must take the risk. Non-compliance with such requisites on his part cannot be allowed to go without any consequence and to enable him to have only the advantage of it. The consequence of the party (who secured the order) for not complying with the duties he is required to perform is that he cannot be allowed to take advantage of such order if the order is not obeyed by the other party. A disobedient beneficiary of an order cannot be heard to complain against any disobedience alleged against another party.

Learned Single Judge stated that the trial court ought not to have granted ex parte injunction beyond thirty days to be in force. The said observation is based on the language contained in Order 39 Rule 3-A of the Code which reads thus: Where an injunction has been granted without giving notice to the opposite-party, the Court shall make an endeavour to finally dispose of the application within thirty days from the date on which the injunction was granted; and where it is unable so to do, it shall record its reasons for such inability.

The Rule does not say that the period of the injunction order should be restricted by the Court to thirty days at the first instance, but the Court should pass final order on it within thirty days from the day on which the injunction was granted. Hence, the order does not ipso facto become illegal merely because it was not restricted to a period of thirty days or less.

Nonetheless, we have to consider the consequence, if any, on account of the Court failing to pass the final orders within thirty days as enjoined by Rule3-A.

The aforesaid Rule casts a three-pronged protection to the party against whom the ex parte injunction order was passed. First is the legal obligation that the Court shall make an endeavour to finally dispose of the application of injunction within the period of thirty days. Second is, the legal obligation that if for any valid reasons the Court could not finally dispose of the application within the aforesaid time the Court has to record the reasons thereof in writing.

What would happen if a Court does not do either of the courses? We have to bear in mind that in such a case the Court would have by-passed the three protective humps which the legislature has provided for the safety of the person against whom the order was passed without affording him an opportunity to have a say in the matter. First is that the Court is obliged to give him notice before passing the order. It is only by way of a very exceptional contingency that the Court is empowered to by-pass the said protective measure. Second is the statutory obligation cast on the Court to pass final orders on the application within the period of thirty days. Here also it is only in very exceptional cases that the Court can by-pass such a rule in which cases the legislature mandates on the court to have adequate reasons for such bypassing and to record those reasons in writing. If that hump is also bypassed by the Court it is difficult to hold that the party affected by the order should necessarily be the sole sufferer.

It is the acknowledged position of law that no party can be forced to suffer for the inaction of the court or its omissions to act according to the procedure established by law. Under the normal circumstances the aggrieved party can prefer an appeal only against an order passed under Rules 1,2,2A, 4 or 10 of Order 39 of the Code in terms of Order 43 Rule 1 of the Code. He cannot approach the appellate or revisional court during the pendency of the application for grant or vacation of temporary injunction.

In such circumstances the party who does not get justice due to the inaction of the court in following the mandate of law must have a remedy. So we are of the view that in a case where the mandate of Order 39 Rule 3A of the Code is flouted, the aggrieved party, shall be entitled to the right of appeal notwithstanding the pendency of the application for grant or vacation of a temporary injunction, against the order remaining in force. In such appeal, if preferred, the appellate court shall be obliged to entertain the appeal and further to take note of the omission of the subordinate court in complying with the provisions of Rule 3A. In appropriate cases the appellate court, apart from granting or vacating or modifying the order of such injunction, may suggest suitable action against the erring judicial officer, including recommendation to take steps for making adverse entry in his ACRs. Failure to decide the application or vacate the ex-parte temporary injunction shall, for the purposes of the appeal, be deemed to be the final order passed on the application for temporary injunction, on the date of expiry of thirty days mentioned in the Rule.

Supreme Court of India

A. Venkatasubbiah Naidu vs S. Chellappan And Ors on 19 September, 2000

Bench: K.T. Thomas, R.P. Sethi

Citation;AIR 2000 SC 3032

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