Before diving it is good to understand what are Appealable Orders?
Meaning of Appealable: liable to be appealed against; capable of being appealed, basically that can be appealed against.
Meaning of Order: Authoritative direction. Injunction, mandate, a decision of the court or judge made or entered in writing.
Section 2(14) of Civil Procedure Code defines Order as below:
Order means a formal expression of any decision of a Civil Court which is not a decree.
Sec 2 of Civil Procedure Code defines the Decree as below:
A formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the right if the party with regards to all or any of the matters in controversy in the suit and may be either preliminary or final.
It shall be deemed to include the rejection of a plaint and the determination of any question within section 144, but shall not include-
Any adjudication from which an appeal lies as an appeal from an order or
Any order of dismissal for default.
Types of Decree:
Preliminary Decree: A Decree is said to be preliminary decree when further proceedings have to be taken before the suit can be completely disposed of.
Final Decree: A Decree is said to be final decree when such adjudication completely disposes of the suit.
What are Appealable Orders?
The Court pronounces Orders on various Interlocutory applications. Against some of those Orders, aggrieved party may prefer an appeal which is known as Appealable Orders.
Appealable Orders are also known as Civil Miscellaneous Appeals.
The Orders which are appealable are detailed under Order 43 and Section 104 of Civil Procedure Code.
Provisions regarding appeals are applicable to Appealable Orders are defined under Order-43, Rule -2 .
Appeals from Orders
Section 104 and Rule 1 of Order 43 (XLIII) of Civil Procedure Code lays down the Appealable Orders.
The procedure of appeal from Orders shall be the same as provided by Order 41 (XLI) of the code for the first appeal.
Appealable Order as Follows:
An order under section-35 A, i.e. on compensatory cost in respect of false or vexatious claims or defences.
2. 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.
3. An order under section 95, i.e. Compensation for obtaining arrest, attachment or Injunction on insufficient grounds.
4. An order under Section 104(h), i.e. 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.
5. Section 104(i), i.e. Any order under rules from which appeal is expressly allowed by rules.
6. An order under Rule 10 of Order 7 returning a plaint to be presented to the proper court order passed in the Rule 10-A of Order 7.
Case law: where an order is made by the first court of appeal returning a plaint under Order 7, Rule 10 by the virtue of power conferred on it by Section 107, the order is appealable under this clause. (Logonathan v S.chenniya chattier AIR 1996 Mad 224, Union of India v New India Assurance AIR 1997 Del 54).
7. An order setting aside the dismissal of suit files under Rule 9 of Order 9.
Case law: Rejection of an application under Order 9, Rule 9 irrespective of the fact whether that rejection is on merits or is default.(Kulakchandra v Nripendra Mohan, AIR 1970 Tri 56, Nathu Prasad v S.Kapur chand , AIR 1976 MP 136 (FB)).
8. An order under Rule 13 of Order 19 rejecting an application (in case open to appeal) for an order to set aside a decree passed ex-parte.
Case Law: Rejecting an application for a Order to set aside a decree passed ‘ex-parte’ an appeal is provided (Gulam Mahommad Nurminya Kazi v Prakash Devendra Shantilal, AIR 1996 Guj 94).
An order under Rule 21 of Order 11, Non-compliance with order of Discovery.
Case Law: when an order purports to be passes under the rule, an appeal lies even though the Court might have been in error in acting under this rule (Ashreddy v VenkatReddy, AIR 1985 AP 450)
10. An order undet Rule 34 of Order 21, on an objection to draft of document or of an endorsement.
11. An order under Rule 72 or Rule 92 of Order 21 setting aside or refusing to set aside a sale.
Case law: An appeal is maintainable against an order under Order 21, Rule 90 refusing to set aside a sale (Anjalina D’Souza v Laxmi Vilas Bank Ltd , AIR 1995 Kant 30)
12. An order rejecting an application made under subrule (1) of Rule 106 of Order 21, 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.
Case Law: An appeal against an order adjudicating resistance to possession is maintainable. A revision is thus not maintainable (Sk. Saiful Nandlal v Sk. Akkas ali, AIR 1998 cal 137).
13. An order under Rule 9 of Order 22, referring to set aside the abatement or dismissal of a suit.
Case Law: Alphanso v Xaiver Dias , AIR 1971 Mys 79.
An order under Rule 10 or Order 22, giving or refusing to give leave.
Case law: Jadunath v Murari, AIR 1931 cal 594
15. An order under Rule 2 of Order 25, rejecting an application (in a case open to appeal) for an order to set aside the dismissal of the suit.
16. An order under Rule 5 or Rule 7 of Order 33, rejecting an application for permission to sue as an Indigent person.
An order in Interpleader-suits under Rule 3, Rule 4 or Rule 6 of Order 35.
Case law: Thresiamma v Jerome, AIR 1958 Ker 304: (1958) ILR Ker 23.
18. An order under Rule 2 , Rule 3 or Rule 6 of Order 38.
Case law: Union Bank of India v Andra Technocrat Industries, AIR 1989 AP 408.
19. An order under Rule 1, Rule 3 , Rule 2-A , Rule 4 or Rule 10 of Order 39.
Case law: Kanhaiyalal Bhargava v Bansilal, AIR 1950 All 444.
20. An order under Rule 1 or Rule 4 of Order 40.
Case law : Lachminarayan Modi v Naik & Co, AIR 1947 pat 5.
21. An order of refusal under Rule 19 of Order 41 to re-admit or under Rule 21 of Order 41 to re-hear an appeal.
Case law: Syed Takhlesh hyder Zaidi v Naziruddin , AIR 2003 All 56.
22. An order under Rle 23 or Rule 23 A of Order 41 remanding a case, where an appeal would lie from the decree of the appellate court.
23. An order under Rule 4 of Order 47, granting an application for review.
Note: According to Section 105(1) , no appeal shall lie from any order made by a court in the exercise of its original or appellate jurisdiction: but when the decree is appealed from, any error, defect or irregularity in the order, affecting the decision of the case may be set forth as a ground of objection in the memorandum of appeal.
Limitation: An appeal from an order can be filed in a High court with in 90 days and in the other court within 30 days from the date of the order (Article 116, Limitation Act 1963).
Meaning for “from no order “under Section 104:
Following orders have been held to be not-appealable
An order under Order 1 , Rule 3 holding that the suit is bad for multifariousness and asking the plaintiff to elect
(RamKrishna Das v Bindeshwar Prasad, AIR 1951 pat 364)
An order holding that the court has jurisdiction to try the cause.
(Manash Ranjan Chakravatry v Tropical Accumulators Ltd, AIR 1957 cal 135:60 cal WN 591)
An order appointing a commissioner to ascertain mesne profit.
(Re Badrajala Naidu, (1958) 1 MLJ 99).
An order under Order 37, Rule 3 granting or refusing to grant, leave to defend.
(Bunwarhal Roy v Sohan lal Daga (1955) 1 cal 299)
An order made in Execution proceeding on objection raised by the judgment-debtor under Order 21, rule 90
(Uma Datt v R.K Sardana, AIR 1979 Del 56)
An order passed under Section 151, since such an order is not included in the category of appleable order
(Nandal M V & co v Gordhandas, AIR 1956 cal 547)
An order disposing of miscellaneous appeal
(Kamta Prasad v Behari lal, AIR 1977 All 109)
Interlocutory order passed under Order 22, Rule 10 in a revision, Substituting party in Executing proceeding.
(Rameshwar Nath Sinha v Narsingh Sahai, AIR 2002 All 113)
Order declining to review the final order passed by single judge in writ proceedings.
(BF Pushpaleela Devi v State of Andra Pradesh, AIR 2002 Andra pra 420 (FB)).
Order granting or rejecting injunction
(Motilal Ramdev v Bhandari, AIR 2002, Chhatisgarh 6)
Interlocutory order in civil miscellaneous appeal v/s 104 of code of civil procedure
(Sree Narayana Dharma Samajan v VP Mohandas, AIR 2001 Ker 56)
Some Important Case laws:
What categories of Interlocutory judgment would fall within the ambit of the expression ‘judgment’?
(Ashutosh Shrotriya v Vice-chancellor Dr. B.R Ambedkar University , 2015 8 ) ADJ 248: 2015 (6) ALJ 383:2016 (116) ALR 310: (2015) ILR 3 All 1062)
Under the code specific order mentioned in Section 104 and Order 43, rule 1 only are appealable and no appeal lies from any other orders, An order made in the Section 151 is not included in the category of appealable orders.
(Keshardeo v Radhakishen, AIR 1953 SC 23: (1953) 4 SCR 136)
Order allowing or refusing injunction is appealable order under section 104 read with Order 43.
(Krushna pandurang wankhede v Sitaram panjaji Wankhede, 1984 Mah LR 143)
If Interlocutory order passed upon a writ petition under Article 226 of constitution is otherwise judgement within the meaning of clause 15 of the Letter Patent , the appeal against such orders would be maintainable.
(Shalini v Praash, (19193) & Mah LR 423 at 427 (DB))
Correction of the order passed thereon could be challenged in the appeal against the main decree.
(Janardhana Raj v Thailammal, AIR 1993 176 at 179)
Erroneous Interlocutory order which affects the decision of the case may be attached in a appeal from the ultimate order or decree in the suit.
(Sabitri Debi v Baikuntha Das , AIR 1979 ori 140)
Non- allowance of any order by court in the absence of any valid notice.
(Gauri shankar v Hindustan Trust Pvt Ltd, AIR 1972 SC 2091 at 2095)
Order of abetment not a decree and no appeal lie against such order
(Munney Khan v Kaushilaya Devi, AIR 1981 All 240)
Order under Order 21, Rule 9 is appealable as an order would not be a decree and therefore no second appeal would lie against that order such appeal liable to be rejected as Incompetent
(Madan Naik v (Mst) Hansubala, AIR 1983 SC 676)
Expression “any order” is general and there is nothing that restrict it to appealable or non-appealable order.
(Sankara Menon v GouriKutty Amma, AIR 1978 Ker 211 (DB) )
Whether after a plaint is returned in terms of Order VII rule 10 and Rule 10 A, CPC , should the trail in the court where the plaint is now filed start de novo or from such stage at which the plaint was ordered to be retuned? The Supreme Court has referred to larger bench. (M/S EXL Carrers & Anr v Frakfinn Aviation Services SC 16893/2018).