ORDER XLIII – Civil Procedure Code 1908

Civil Procedure Code 1908

 

 

ORDER XLIII. APPEALS FROM ORDERS

 

1. Appeals 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 1[except where the procedure specified in rule 10A of Order VII has been followed];

 

2* * * *

(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 ex pane

2* * * * *

 

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

 

2* * * * *

 

(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;

 

1[(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;

3* * * * *

 

(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;

 

4[(na) an order under rule 5 or rule 7 of Order XXXIII rejecting an application for permission to sue as an indigent persons:]

 

3* * * * *

(p) orders 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 4[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 rule 23 [or rule 23A] of Order XLI remanding a case, where an appeal would lie from the decree of the Appellate Court;

5* * * *

 

(w) an order under rule 4 of Order XLVII granting an application for review.

 

1. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

 

2. Clauses (b), (e), (g) and (h) omitted by Act No. 104 of 1976 (w.e.f. 1-2-1977).

 

3. Clauses (m) (o) (v) omitted by Act No. 104 of 1976 (w.e.f. 1-2-1977).

 

4. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

 

5. Clauses (m) (o) (v) omitted by Act No. 104 of 1976 (w.e.f. 1-2-1977).

 

HIGH COURT AMENDMENTS

 

Allahabad.-In Order XLIII, in rule 1, omit clauses (g), (i) and (o).

 

[Vide Notification No. 43/VII-d-29, dated 1st June, 1957.]

 

Andhra Pradesh-In Order XLIII, in rule 1,-

 

(i) after clause (i) insert the following clause, namely:-

 

“(ii) an order under rule 106 of Order XXI;”

 

[Vide Notification No. P Dis. 229/56, dated 2nd April, 1956.]

 

(ii) in clause (r), after the words and figure “rule 2”, insert the words and figures “rule 3A, rule 3B”. (w.e.f. 12-7-1962)

 

Bombay.-In Order XLIII, in rule 1,-

 

(i) in clause (r), for the words and figures “or rule 10”, substitute the words and figures v “rule 10 and rule 11”; (w.e.f. 1-11-1966)

 

(ii) omit clause (w).

 

[Vide Notification No. 1646, dated 9th March, 1926.]

 

Calcutta.-In Order XLIII, in rule 1, after clause (i), insert the following clause, namely:-

 

“(i) (a) An order under rule 57 of Order XXI, directing that an attachment shall cease or directing or omitting to direct that an attachment shall continue.”

 

[Vide Notification No. 3516-G, dated 3rd February, 1933.]

 

Gauhati.-Same as in Calcutta.

 

Gujarat-Same as in Bombay (ii).

 

Kerala.-In Order XLIII, in rule 1, same as in Madras (b). (9-6-1959)

 

Madras.-In Order XLIII, in rule 1,-

 

(a) after clause (i) insert the following clause, namely:-

 

“(ii) an order under rule 106 of Order XXI.” (w.e.f. 19-5-1954)

 

(b) in clause (s), at the end, insert the words “except an order under the proviso to sub-rule (2) of rule 4.”

 

[Vide P Dis. No. 60 of 1933.]

 

Patna.-In Order XLIII, in rule 1, after clause (i), insert the following clause, namely:-

 

“(ii) an Order in garnishee proceedings other than an order referred to in rule 63 H (1) of Order XXI.” (w.e.f. 7-1-1936)

 

1[1A. Right to challenge non-appealable orders in appeal against decree-

(1) Where any order is made under this Code against a party and thereupon any judgment is pronounced against such party and a decree is drawn up, such party may, in an appeal against the decree, contend that such order should not have been made and the judgment should not have been pronounced.

 

(2) In an appeal against a decree passed in a suit after recording a compromise or refusing to record a compromise, it shall be open to the appellant to contest the decree on the ground that the compromise should, or should not, have been recorded.]

 

1. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

 

2. Procedure

 

The rules of Order XLI shall apply, so far as may be, to appeals from orders.

 

HIGH COURT AMENDMENTS

 

Allahabad.-In Order XLIII, in rule 2, after the words and figures “Order XL1”, insert the words and figures “and Order XLIA”.

 

[Vide Notification No. 14186/VII-d-147, dated 22nd December, 1951.]

Andhra Pradesh.-Same as in Madras.;

 

Karnataka.-In Order XLIII, for rule 2, substitute the following rules, namely:-

“2. The rules contained in Orders XLI and XLIA shall apply, so far as may be, to appeals from the orders specified in rule 1 and other orders of any subordinate Court from which an appeal to the High Court is allowed under the provisions of any law:

 

Provided that in the case of appeals against interlocutory orders made prior to decree or final order, the Court which passed the order appealed from need not send the records of the case unless an order has been made by the High Court for stay of further proceedings in that Court but send only such records as may be called by the High Court.

 

3. Rules contained in Order XLII shall apply, so far as may be, to appeals from appellate Orders.”

 

[Vide Notification No. ROC 2296/59, dated 5th Novembrer, 1959.]

 

Kerala.-In Order XLIII, for rule 2, substitute the following rule, namely:-

 

“2. The rules of Order XLI, Order XLIA and Order XLII, rule 2(2) shall apply, so far as may be, to appeals from the Orders specified in rule I and other orders of any Civil Court from which an appeal to the High Court is allowed under any provision of law:

 

Provided that in the case of appeals against interlocutory orders made prior to decree, the Court which passed the order appealed from shall not send the records of the case unless an order has been made for stay of further proceedings in that Court.” (w.e.f. 9-6-1959)

 

Madras.-In Order XLIII, for rule 2,-

 

(a) substitute the following rule, namely:-

 

“2. The rules of Order XLI and of Order XLIA shall apply, so far as may be, to appeals from the orders specified in rule 1 and other orders of any Civil Court from which an appeal to the High Court is allowed under any provision of law:

 

Provided that in the case of appeals against interlocutory orders made prior to decree, the Court which passed the order appealed from shall not send the records of the case unless an order has been made for stay of further proceedings in that Court.”

 

(b) after rule 2, insert the following rule, namely:-

 

“3. Appeals from Appellate Orders.-(1) The provisions of Order XLII shall apply, so far as may be, to appeals from appellate orders.

 

(2) A memorandum of appeal from an appellate order shall be accompanied by a certified copy of the judgment and of the order of the Court of first instance, and by a certified copy of the judgment and of the order of the Appellate Court.

 

(3) If any ground of appeal is based upon the construction of a document, a printed a typewritten copy of such document shall be presented with the memorandum of appeal:

 

Provided that, if such document is not in the English language and the appellant appears by a pleader, an English translation of the document certified by the pleader to be a correct translation shall be presented.”

 

[Vide P Dis. No. 788 of 1932.]

 

Punjab, Haryana and Chandigarh.-In Order XLIII, for rule 2, substitute the following rule, namely:-

 

“2. The rules of Order 41 shall apply, so far as may be, to appeals from order:

 

Provided that in case of appeals against interlocutory orders, the Court which passed the order appealed from shall not sent the records of the case unless summoned by the Appellate Court.” (w.e.f. 28-1-1993)

 

 

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Civil Procedure Code 1908

 

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