In the Indian legal system, the right to appeal is a statutory privilege, allowing parties to seek a higher court’s review of a lower court’s decision. Sections 104 to 106 of the Code of Civil Procedure, 1908, specifically address appeals from orders, delineating which orders are appealable and the procedures governing such appeals.

1. LEGAL PROVISIONS AND SCOPE

Section 104: Orders from Which Appeal Lies

Section 104 enumerates specific orders that are appealable under the CPC. It states 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:

• Orders under Section 35A (Compensatory costs in respect of false or vexatious claims or defenses).
• Orders under Section 91 or Section 92 refusing leave to institute a suit.
• Orders under Section 95 (Compensation for obtaining arrest, attachment, or injunction on insufficient grounds).
• Orders imposing a fine or directing the arrest or detention in civil prison, except where such arrest or detention is in execution of a decree.
• Any order made under rules from which an appeal is expressly allowed by rules.

Sub-section (2) of Section 104 explicitly bars any further appeal from orders passed in appeals under this section. This provision ensures that litigation does not become interminable due to multiple appeals on interlocutory orders.

Section 105: Other Orders

Section 105 provides that, 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. This section allows parties to challenge interlocutory orders indirectly when appealing against the final decree.

Section 106: What Courts to Hear Appeals

Section 106 stipulates that appeals against orders shall be made to the court to which an appeal would lie from the decree in the suit in which the order was made. This provision ensures consistency and clarity regarding the appellate forum for orders.

2. CASE LAWS AND JUDICIAL INTERPRETATIONS

Subal Paul v. Malina Paul, (2003) 10 SCC 361

• Facts: The appellant challenged an order passed by a single judge before a division bench under Clause 15 of the Letters Patent.
• Issue: Whether an appeal under Clause 15 of the Letters Patent is maintainable in light of Section 104(2) CPC.
• Held: The Supreme Court held that Section 104(2) does not bar an appeal under Clause 15 of the Letters Patent. It was observed that Section 104 recognizes appeals provided under special statutes and does not create a right of appeal as such. Therefore, if a statute provides for an appeal, Section 104 does not bar it.

P.S. Sathappan v. Andhra Bank Ltd., (2004) 11 SCC 672

• Facts: The appellant sought to file an appeal under Clause 15 of the Letters Patent against an order passed in an appeal under Section 104 CPC.
• Issue: Whether Section 104(2) CPC bars a Letters Patent appeal.
• Held: The Supreme Court held that Section 104(2) does not bar a Letters Patent appeal. It was emphasized that Section 104(1) provides for appeals from orders as enumerated, and Section 104(2) bars further appeals from orders passed in such appeals. However, this does not affect the jurisdiction under the Letters Patent unless expressly barred.

3. PROCEDURE FOR FILING APPEALS

The procedure for filing appeals from orders under Sections 104 to 106 CPC is governed by the following principles:

• Limitation Period: The Limitation Act, 1963, prescribes the time frame for filing appeals. An appeal to the High Court must be filed within 90 days from the date of the order, and an appeal to any other court must be filed within 30 days.
• Memorandum of Appeal: The appellant must file a memorandum of appeal, stating the grounds on which they challenge the order. This document should be precise and confined to the issues decided by the order.
• Stay of Proceedings: Filing an appeal does not automatically stay the execution of the order appealed from. The appellant must specifically apply for a stay, and the appellate court may grant it based on the merits of the case.

4. DISTINCTION BETWEEN DECREE AND ORDER

Understanding the distinction between a decree and an order is crucial, as it determines the right to appeal:

• Decree: As defined under Section 2(2) CPC, a decree is a formal expression of an adjudication conclusively determining the rights of the parties concerning all or any of the matters in controversy in the suit. Appeals from decrees are generally provided under Sections 96 and 100 CPC.
• Order: Defined under Section 2(14) CPC, an order is the formal expression of any decision of a civil court that is not a decree. Not all orders are appealable; only those specified under Section 104 and Order XLIII Rule 1 CPC can be appealed.

5. ORDERS SPECIFICALLY MADE APPEALABLE UNDER ORDER XLIII RULE 1

Order XLIII Rule 1 of the CPC provides a list of orders that are appealable under Section 104. Some of these include:

• An order under Rule 10 of Order VII returning a plaint to be presented to the proper court.
• An order under Rule 9 of Order IX rejecting an application for an order to set aside the dismissal of a suit.