Order 43 CPC and Section 104 CPC: Appealable Orders and Miscellaneous Appeals

Not every order passed during a civil suit can be appealed. The Code of Civil Procedure, 1908 lists the orders that are appealable in Section 104 and in Order 43 Rule 1. An appeal against such an order is commonly called a miscellaneous appeal (MA) or civil miscellaneous appeal.

Section 104 CPC

Section 104(1) provides that an appeal lies from the orders it lists and, save as otherwise expressly provided in the Code or any other law, from no other orders. Its list includes orders under Section 35A on compensatory costs, certain orders under Sections 91 and 92, orders under Section 95, orders imposing a fine or directing arrest or detention (except in execution of a decree), and any order made under the rules from which an appeal is expressly allowed by the rules. That last clause is the link to Order 43.

Section 104(2) adds that no appeal lies from an order passed in appeal under the section.

Order 43 Rule 1: the main list

Order 43 Rule 1 lists orders under the rules that are appealable. Frequently used entries include:

• Rule 1(a): an order under Order 7 Rule 10 returning a plaint for presentation to the proper court, except where the procedure in Order 7 Rule 10A has been followed.
• Rule 1(c): an order under Order 9 Rule 9 rejecting an application to restore a suit dismissed for default.
• Rule 1(d): an order under Order 9 Rule 13 rejecting an application to set aside an ex parte decree.
• Rule 1(r): orders under Order 39 Rules 1, 2, 2A, 4 and 10, covering grant or refusal of temporary injunctions, disobedience, variation and deposit. An ex parte order under Order 39 Rule 3 is not listed.

Check the current text and any State amendments. Several clauses, including clause (b), have been omitted by amendment, which is why some commentaries number the list differently.

Order 43 Rule 1A and Rule 2

• Rule 1A: where an order is not appealable on its own, a party may still challenge it in an appeal against the final decree, for example an order setting aside a compromise.
• Rule 2: the procedure in Order 41 for appeals from decrees applies, so far as may be, to appeals from orders.

Limitation

Under Article 116 of the Limitation Act, 1963, an appeal under the CPC is to be filed within 90 days when it lies to a High Court and 30 days when it lies to any other court, counted from the date of the order. Time for obtaining a certified copy is excluded under Section 12 of the Limitation Act.

Drafting a miscellaneous appeal

1. Confirm the order is appealable and identify the exact clause of Section 104 or Order 43 Rule 1.
2. Confirm the appellate forum and the limitation date.
3. Set out the order under appeal, short facts, and numbered grounds tied to the record.
4. File the certified copy of the order and an application for stay or interim relief where needed.

Miscellaneous appeal format under Order 43 Rule 1

Adapt the cause title, numbering and court fee to the appellate court's rules.

``` IN THE COURT OF [DISTRICT JUDGE / HIGH COURT OF __], AT [PLACE]

Miscellaneous Appeal No. ____ of [year] (Under Section 104 read with Order 43 Rule 1([clause]) of the Code of Civil Procedure, 1908)

[Name], [address] ............................ Appellant versus [Name], [address] ............................ Respondent

Appeal against the order dated [date] passed by [court] in [Suit / I.A.] No. [__] of [year], [describe order, e.g. refusing temporary injunction under Order 39 Rules 1 and 2]

1. Particulars of the order: [court, case number, date, operative part].
2. Short facts: [3-6 numbered paragraphs, each tied to the record].
3. Appealability: the order is appealable under Order 43 Rule 1([__]).
4. Limitation: the order is dated [__]; the certified copy was applied

for on [__] and received on [__]; the appeal is within time under Article 116 of the Limitation Act, 1963 read with Section 12.

1. Grounds:

A. Because the trial court [specific error, with page/para of order]. B. Because [prima facie case / balance of convenience / irreparable injury, or the relevant test] was [misapplied], in that [__]. C. [Further grounds.]

1. Valuation and court fee: [as per the applicable Court Fees Act].
2. No other appeal on the same order has been filed.

PRAYER (a) Set aside the order dated [__] and [grant the relief refused / dismiss the application]; (b) Pending the appeal, stay the operation of the order dated [__]; (c) Pass any other order this Court deems fit.

Place: [__] Advocate for the Appellant Date: [__] Enclosures: certified copy of the order; copy of the plaint, application and reply; vakalatnama; stay application with affidavit ```

If the order is not appealable, consider a revision under Section 115 CPC or a petition under Article 227, depending on the order and the court. Juniorlawyer can draft a first version of the appeal from the order and pleadings. Read our guide to the written statement under Order 8 CPC or filing a caveat under Section 148A CPC.

For the plaint at the start of a title dispute, see our guide to a suit for declaration and its court fee.