Appeals from Orders (Order XLIII)

Order XLIII of the Code of Civil Procedure, read with Section 104, governs appeals from orders. Unlike first appeals from decrees under Section 96 — which lie from every decree of a court of original jurisdiction — appeals under Order XLIII are confined to a closed list of orders specified in Rule 1. If an order is not in the list, no appeal lies under Order XLIII. The discipline of the closed list is the discipline of the chapter.

The closed-list architecture serves a docket-management function. The legislature concluded in 1908, and reaffirmed in 1976, that not every interlocutory order should generate a separate appellate proceeding — only those that involve substantive prejudice or that decide a discrete substantive question. Routine procedural orders are left to be challenged in the eventual appeal against the decree, where they form part of the substantive controversy. For a judiciary aspirant, Order XLIII is heavy on lists and exceptions. Two propositions must be internalised at the outset: (i) the list under Order XLIII Rule 1 is exhaustive, not illustrative; and (ii) under Section 104(2), no second appeal lies from an order passed in an appeal preferred under Section 104.

Statutory anchor

Section 104 is the source of the appellate right. Order XLIII Rule 1 is the operational list. The two are linked by the closing clause of Section 104(1)(e), which makes the orders specified in rules — that is, in Order XLIII Rule 1 — appealable.

Order XLIII Rule 1 — the catalogue of appealable orders

The current list, as it stands after the 1976 Amendment, includes the following major categories. The list is given here in operational form rather than rigid alphabetical clause order:

1. Clause (a) — Order VII Rule 10: An order returning a plaint to be presented to the proper court, except where the procedure under Order VII Rule 10A has been followed.
2. Clauses (c) and (d) — Order IX: An order rejecting an application to set aside the dismissal of a suit (Rule 9) or to set aside an ex parte decree (Rule 13). Both rejections are appealable under Order XLIII; the dismissals or decrees themselves are appealable under Section 96.
3. Clause (f) — Order XI Rule 21: An order striking out the defence or plaint for non-compliance with discovery directions.
4. Clause (j) — Order XXI Rule 72 or 92: An order in execution proceedings setting aside or refusing to set aside an execution sale.
5. Clause (k) — Order XXII Rule 9: An order refusing to set aside the abatement or dismissal of a suit on the death of a party.
6. Clause (n) — Order XXXIII Rule 5 or 7: An order rejecting an application for permission to sue as an indigent person.
7. Clause (p) — Order XXXV: Orders in interpleader suits under Rule 3, Rule 4 or Rule 6.
8. Clause (q) — Order XXXVIII Rules 2, 3 or 6: Orders on attachment before judgment.
9. Clause (r) — Order XXXIX Rules 1, 2, 2A, 4 or 10: Orders on temporary injunctions, including the order of punishment for breach of injunction under Rule 2A inserted in 1976.
10. Clause (s) — Order XL Rules 1 or 4: Orders on appointment of receivers.
11. Clauses (t) — Order XLI Rules 19 and 21: Orders refusing to re-admit or to re-hear a first appeal.
12. Clause (u) — Order XLI Rules 23 or 23A: An order remanding a case in first appeal where an appeal would lie from the appellate decree.
13. Clause (w) — Order XLVII Rule 4: An order granting an application for review.

Several clauses of the original 1908 list have been deleted by the 1976 Amendment to streamline the appellate ladder. The deletions include the old clause (m) — appeal against an order recording or refusing to record a compromise under Order XXIII Rule 3 — which is now subsumed in the new Order XLIII Rule 1A allowing the validity of the compromise to be challenged in any appeal against the decree. Other deletions include orders pronouncing judgment against a party under Order X Rule 4 and Order XVI Rule 20, both subsumed by Rule 1A; orders refusing to extend time for payment of mortgage money under Order XXXIV Rules 2, 4 or 7; and orders made under Order XLV Rule 6 of the pre-1976 framework. The trimming of the list reflects the broader policy of restricting interlocutory appeals — every additional appeal slows the suit and burdens appellate dockets that are already crowded with substantive first appeals from decrees.

Order XLIII Rule 1A — challenging non-appealable orders in the appeal against the decree

Rule 1A, inserted in 1976, is a critical companion to Rule 1. It provides that where any order specified in clause (a) to clause (w) of Rule 1 is appealable but the party aggrieved did not appeal, he is not precluded from challenging the legality of such order in an appeal against the decree. More importantly, sub-rule (2) of Rule 1A allows a party challenging a decree on the ground that a compromise should not have been recorded, or should have been recorded, to urge that contention in the appeal against the decree.

The provision is the procedural answer to the question that troubled courts before 1976: where an order is appealable but the aggrieved party either misses the appellate window or thinks the order is interlocutory, can he raise the point when the final decree is appealed? Rule 1A says yes — the right to challenge the order survives into the appeal against the decree, provided the order itself was appealable.

The closed-list principle

The Supreme Court has consistently held that the list in Order XLIII Rule 1 is exhaustive. An order not specified is not appealable under Order XLIII, however unjust or prejudicial it may seem. The opening words of Section 104(1) — "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" — exclude any extension by inherent power, equity or analogy.

Three corollaries flow from the closed-list principle:

1. An order rejecting a plaint is not appealable under Order XLIII Rule 1. Order VII Rule 11 rejection results in a decree under Section 2(2), and the decree is appealable under Section 96 — first appeal, not Order XLIII appeal. The two routes are not interchangeable.
2. An order on a question of fact alone is not appealable. The order must fall within one of the listed clauses; mere hardship or unfairness does not create appellate jurisdiction.
3. The list is not extendable by the parties' consent. An agreement between the parties cannot make a non-appealable order appealable, nor can it strip an appealable order of its appellate character.

No second appeal from an Order XLIII appellate order

Section 104(2) imposes a flat bar: no appeal lies from any order passed in appeal under Section 104. The Order XLIII appellate decision is final at the first appellate level. The route to the High Court — for those Order XLIII appeals heard by a District Judge — is by way of supervisory revision on jurisdictional grounds, not by way of further appeal.

Where the Order XLIII appellate decision is itself rendered by a single judge of the High Court, the question of further intra-court appeal is governed by Section 100A (which bars further appeals from a single judge's order in a second appeal) and by the High Court's own rules. The Supreme Court's decisions on Letters Patent appeals from Order XLIII orders are mixed; the safer course is to assume that such intra-court appeals are barred unless the High Court rules expressly permit them.

Procedure — Order XLI applies, so far as may be

Order XLIII Rule 2 applies the rules of Order XLI to appeals from orders, so far as they can be applied. The result is that the procedural framework — memorandum, grounds, summary dismissal, notice, hearing, judgment — is the same as for first appeals. Three structural differences should be noted:

1. The memorandum is accompanied by a copy of the order, not a decree. The right of appeal is from the order; that is the document the appellate court reviews.
2. The pre-deposit requirement under Order XLI Rule 1(3) does not apply. That rule is specific to money-decree first appeals; an Order XLIII appeal is from an interlocutory order, not from a money decree.
3. Cross-objections under Order XLI Rule 22 may apply. Where the order is appealable and the respondent is dissatisfied with another part of the same order, he may file cross-objections.

The most heavily examined Order XLIII clauses

Clause (r) — Order XXXIX Rules 1, 2, 2A, 4 and 10

Orders on temporary injunctions are by far the most appealed orders under Order XLIII. The clause covers: grant of injunction (Rule 1), restraint on disobedience or breach (Rule 2), punishment for disobedience (Rule 2A, inserted in 1976), order of injunction passed without notice (Rule 4 — vacation), and orders on detention or preservation of property (Rule 10). The Supreme Court has held that an order refusing an injunction is appealable; the conversion of a revision into an appeal is not permissible — the litigant must choose the right route from the outset.

Clause (u) — Order XLI Rules 23 and 23A

An order of remand by the first appellate court is appealable under clause (u), but only where an appeal would lie from the appellate decree itself. The condition serves to prevent appeals from interlocutory remands that would not lead to a substantive remedy in any case. Where the appellate court remands under Rule 23 (preliminary point disposed of below) or Rule 23A (substantive disposal below), the remand order can be challenged separately from the eventual decree. The remand machinery itself is examined in detail under Order XLI, which Order XLIII Rule 2 imports into appeals from orders.

Clauses (c) and (d) — Order IX

An order rejecting an application to set aside the dismissal of a suit under Order IX Rule 9, or to set aside an ex parte decree under Order IX Rule 13, is appealable. Where the application succeeds — that is, the dismissal or ex parte decree is set aside — the order is not specifically listed as appealable. The disappointed plaintiff or defendant may, however, seek revision under Section 115 if the order suffers from a jurisdictional irregularity, or may challenge the eventual decree if the underlying suit then proceeds to final judgment.

Distinguish — Order XLIII appeal from cognate routes

1. Order XLIII appeal vs first appeal under Section 96. Section 96 lies from a decree of original jurisdiction. Order XLIII lies from a listed order. The two regimes do not overlap; a decree is appealable under Section 96, an order is appealable under Section 104 if it is in the Order XLIII list.
2. Order XLIII appeal vs revision under Section 115. Order XLIII is a substantive appellate right; revision is a discretionary supervisory remedy. Where Order XLIII permits an appeal, revision does not lie — the appellate route is the exclusive one for the listed orders.
3. Order XLIII appeal vs writ jurisdiction. The Supreme Court has consistently held that where an Order XLIII appeal is available, a writ petition under Article 226 is not the right route. The appellate ladder is the constitutional default; writ jurisdiction is a residuary supervisory power.
4. Order XLIII Rule 1 vs Order XLIII Rule 1A. Rule 1 lists the orders against which appeals lie. Rule 1A allows the validity of an order to be challenged in an appeal against the eventual decree, even if no separate appeal under Rule 1 was filed.

Specific issues that recur

An order returning a memorandum of appeal

The list under clause (a) covers an order returning a plaint under Order VII Rule 10. The Supreme Court has held that no appeal lies from an order returning a memorandum of appeal — the words of clause (a) do not extend to appellate memoranda. The dissatisfied appellant must move the appropriate court directly.

An order recording or refusing to record a compromise

The original clause (m) of Order XLIII Rule 1 is gone. The avenue is now Order XLIII Rule 1A(2): the validity of a compromise is to be tested in the appeal against the decree, not by a separate Order XLIII appeal. The change reflects the policy of consolidating challenges in one appellate proceeding.

An order under arbitration legislation

Where an order is passed under the Arbitration and Conciliation Act, 1996 — for instance, an order under Section 9 granting interim measures — the appeal lies under Section 37 of that Act, not under Order XLIII of the Code. The Code's appellate framework is displaced by the special statute. The two appellate regimes are exclusive of each other.

Leading authorities — at a glance

• Shah Babulal Khimji v Jayaben D Kania (1981) 4 SCC 8 — what constitutes an appealable "judgment" for Letters Patent purposes; expansive reading of judgment to include orders that adversely affect valuable rights.
• Subal Paul v Malina Paul (2003) 10 SCC 361 — the closed-list principle restated; only orders specified in Order XLIII Rule 1 are appealable, and the list is not extendable by inherent power.
• Salem Advocate Bar Association v Union of India (II) (2005) 6 SCC 344 — Order XLIII Rule 1A(2) operates to allow the compromise issue to be raised in the appeal against the decree even where no separate appeal lay.
• Ramesh Chand v Anil Panjwani (2003) 7 SCC 350 — an order recalling abatement is not a judgment; no appeal lies under Order XLIII against such an order.
• Shanti Kumar Panda v Shakuntala Devi (2004) 1 SCC 438 — an order under Order XXXIX Rule 1 is appealable under Order XLIII; the principles of Section 115 revision do not apply where appeal lies.
• Ganpat Ladha v Sashikant Vishnu Shinde (1978) 2 SCC 573 — the right of appeal does not depend on whether reasons for the order have been given; an unreasoned order rejecting an application for injunction is appealable.

MCQ angle — recurring distinctions

1. The closed list. Order XLIII Rule 1 is exhaustive. An order not in the list is not appealable, however prejudicial. The opening words of Section 104(1) — "from no other orders" — slam the door.
2. No second appeal. Section 104(2) bars second appeals from Order XLIII appellate orders. The route, where available, is revision under Section 115 on jurisdictional grounds.
3. Order rejecting plaint vs returning plaint. Rejection under Order VII Rule 11 = decree = appealable under Section 96 (first appeal). Return under Order VII Rule 10 = order = appealable under Order XLIII Rule 1(a).
4. Compromise. No separate Order XLIII appeal against an order recording or refusing to record a compromise. The challenge is in the appeal against the decree under Order XLIII Rule 1A(2).
5. Injunction orders. Order XXXIX Rules 1, 2, 2A, 4 and 10 — all appealable under Order XLIII Rule 1(r). Includes the punishment-for-breach order under Rule 2A.
6. Remand orders. Order XLI Rule 23 or 23A remands appealable under Order XLIII Rule 1(u) only where appeal would lie from the appellate decree.
7. Cross-objections. Order XLI Rule 22 cross-objections may be filed in an Order XLIII appeal where the respondent is aggrieved by another part of the same order.

Several drafting points deserve brief mention. A memorandum of appeal under Order XLIII should specify the clause of Rule 1 under which the appeal is preferred — for example, "under Order XLIII Rule 1(r) read with Order XXXIX Rule 4" — so that the appellate court can immediately verify the appellate basis. Limitation for an Order XLIII appeal is governed by the Limitation Act, 1963 — typically thirty days from the date of the order for appeals to the District Court, ninety days for appeals to the High Court. Service of notice on the respondent follows the rules for service of summons in suits, with adaptations for appellate practice. The appeal does not automatically stay the operation of the order appealed from; a separate stay application must be made and the appellate court applies the same three-condition test under Order XLI Rule 5(3) — substantial loss, no unreasonable delay, and security for due performance. A typical mains question gives the student a list of trial-court orders and asks which are appealable. The expected answer applies the closed-list discipline — checking each order against Order XLIII Rule 1, noting where Order XLIII Rule 1A allows challenge in the appeal against the decree, and identifying the route (Section 96, Order XLIII, revision, or no remedy at all) for those orders not in the list. The chapter sits naturally with Order XLI on first appeals — the one regulates appeals from decrees, the other appeals from listed orders, and together they map the appellate flow on the civil side of the trial court.

Frequently asked questions

Is the list of appealable orders under Order XLIII Rule 1 exhaustive?

Yes. The opening words of Section 104(1) make this explicit: "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." The Supreme Court in Subal Paul v Malina Paul (2003) 10 SCC 361 restated the closed-list principle. An order not in the Order XLIII Rule 1 list is not appealable, however unjust or prejudicial it may seem. The list cannot be extended by inherent power, equity, analogy, or party consent. The disappointed party's recourse is Section 115 revision, where jurisdictional irregularity is shown.

Is an order rejecting a plaint appealable under Order XLIII?

No. Order XLIII Rule 1(a) covers orders returning the plaint under Order VII Rule 10. An order rejecting the plaint under Order VII Rule 11, however, is treated as a decree under Section 2(2). Decrees are appealable under Section 96 — that is, by way of first appeal — and the Order XLIII regime is irrelevant. The two procedural routes serve different orders: return is a procedural redirection (the plaint goes to the proper court), while rejection is a substantive disposal. Confusing the two is a common exam trap; the safer approach is to identify the rule under which the order was passed before choosing the appellate route.

Does a second appeal lie from an Order XLIII appellate order?

No. Section 104(2) imposes a flat bar: no appeal lies from any order passed in appeal under Section 104. The Order XLIII appellate decision is final at the first appellate level. The route to the High Court — for Order XLIII appeals heard by the District Judge — is by way of revision under Section 115 on jurisdictional grounds. Where the Order XLIII appellate decision is itself rendered by a single judge of the High Court, the further intra-court appeal is governed by Section 100A and the High Court's own Letters Patent rules. The safer assumption is that intra-court appeals from such orders are barred unless expressly permitted.

What is the effect of Order XLIII Rule 1A on a compromise order?

The original clause (m) of Order XLIII Rule 1 — which allowed an appeal against an order recording or refusing to record a compromise under Order XXIII Rule 3 — was deleted by the 1976 Amendment. In its place, Order XLIII Rule 1A(2) provides that a party challenging a decree may urge that a compromise should or should not have been recorded in the appeal against the decree itself. The challenge is consolidated with the substantive first appeal under Section 96, not pursued as a separate Order XLIII appeal. The change reflects the legislative policy of restricting interlocutory appeals and concentrating attacks on the eventual decree.

Can an order under Order XXXIX Rule 1 be challenged by revision instead of appeal?

No. The Supreme Court in Shanti Kumar Panda v Shakuntala Devi (2004) 1 SCC 438 held that an order under Order XXXIX Rule 1 — grant or refusal of temporary injunction — is appealable under Order XLIII Rule 1(r), and where appeal lies, revision under Section 115 does not. The principle is broader: where the Code provides an appellate remedy, the supervisory remedy of revision is excluded for that order. The litigant who wishes to challenge an injunction order must therefore file an appeal under Order XLIII, not a revision. Conversion of a revision into an appeal is not permissible.