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Report No. 54

Chapter 43

Appeals from Orders

Introductory

43.1. Apart from appeals from original and appellate decree which have been dealt with in separate Orders, the Code allows appeals from certain orders enumerated in section 104, and Order 43, rule 1.

Order 43, rule 1-Analysis of orders listed in Order 43, rule 1

43.2. Order 43, rule 1, lists the orders that are appealable.

For a proper consideration of the provisions of this rule, it would be convenient if the orders enumerated are grouped under a few classes. One possible classification would be between orders which are directly or indirectly in the nature of final adjudications, and orders which are merely interlocutory.

43.3. Again, while considering the finality of orders in this context, one could keep several aspects separate.

There are-

(i) orders which are final, in the sense that they put an end to the list, but are not preceded or accompanied by decrees that are themselves separately appealable;

(ii) orders which are final inasmuch as they put an end to the list, but are preceded or accompanied by decrees that are themselves appealable;

(iii) orders which are final in relation to the particular court; and

(iv) other orders-which may, for the sake of convenience, be referred to as interlocutory orders; and

(v) originating orders.

43.3A. Accordingly, an attempt is made below to divide the orders enumerated in Order 43, rule 1, into a few classes, on the above basis-

Class (i)

Orders which are final, in the sense that they put an end to the list, but are not preceded or accompanied by decrees that are themselves separately appealable Clause (c), Clause (f), Clause (k), Clause (l),-(refusal to give leave), Clause (n), Clause (t), in part-(Refusing to re-admit)--Clause (u) Clause (v).

Class (ii)

Orders which are final inasmuch as they put an end to the list, but are preceded or accompanied by decrees that are appealable-Clause (b), Clause (d), Clause (h), Clause (m), in part-(i.e. orders recording a compromise), Clause (t), in part-(Refusal to re-hear).

Class (iii)

Orders which are final in relation to the particular court-Clause (a).

Class (iv)

Interlocutory orders-Clause (e), Clause (g), Clause (i), Clause (j), Clause (1)-(Order giving leave), Clause (m), in part-(Refusal to record a compromise)-Clause (o), Clause (p), Clause (q), Clause (r), Clause (s).

Class (v)

Originating Orders-Clause (w).

Our approach

43.4. Our approach in making recommendations for the curtailment of appeals against orders is, broadly speaking, as follows:

(i) Where the order is accompanied or followed by another final adjudication (usually a decree), which itself is appealable,1 it is desirable to abolish the appeal against the orders, but at the same time to provide for an opportunity to challenge the order in the appeal against the final adjudication. The principal object of such an approach is to avoid successive appeals which add to the length of the litigation.

(ii) Where the order is not accompanied or followed by any such final adjudication, then obiAously the question of avoiding successive appeals does not arise, but abolition or modification of the right of appeal against that order should be considered on other relevant considerations, including, in particular-(1) whether the order, if allowed to stand, would cause such hardship to the aggrieved party as to justify a right of appeal, and (2) whether any other remedy would be equally adequate.

We shall now indicate the changes needed in the various clauses of Order 43, rule 1.

1. See para. 43.3A, supra.

Order 43, rule 1(a)

43.5. Order 43, rule 1(a), provides for appeal against an order under Order 7, rule 10, where a plaint is returned to be presented to the proper court. The only change which is necessary in this rule is, that the right of appeal under this rule should be subject to the new restriction which we propose1 on the right in certain cases.

1. See Order 7, rule 10A (New).

Recommendation

43.6. Accordingly, we recommend that in Order 43, rule 1(a), the words "subject to the provisions of Order 7, rule 10A", should be added at the end.

Order 43, rule 1(b)

43.7. Rule 1(b) provides appeal against an order under Order 8, rule 10-where the party fails to present a written statement within the time fixed by the court, and the court pronounces judgement against him.

43.8. We are of the view that an appeal against an order under Order 8, rule 10 pronouncing judgment against a party, should be abolished. The idea is to reduce the present two successive appeals to one. The defendant can, in an appeal from the decree passed as a result of the order, take the same point as he can take in appeal under Order 43, rule 1(b). To avoid doubts whether such a point can be taken,-doubts which may arise because the judgment pronounced under Order 8, rule 10, would be regarded as final in the appeal against the decree-an express provision could be made to clarify the position. No doubt, the appellant will have to pay high court fees on the appeal. But we would recomĀ¬mend to State Governments, that the court fees for appeals against the decree in such cases should be reduced to the court fees for appeal against orders.

Recommendation

43.9. In short, our recommendations are as follows

(i) Order 43, rule 1(b) should be deleted;

(ii) court fees on an appeal against the decree in cases where judgment is pronounced under Order 8, rule 10 should be reduced to the court fees for orders;1

(iii) the following rule2 should be inserted as Order 43, rule 1A:-

"1A. Where a court pronounces judgment against a defendant under Order 8, rule 10, he may appeal against the decree following on the judgment on the ground that the judgment ought not to have been so pronounced."

1. Para. 43.8, supra.

2. To be inserted as Order 43, rule 1.



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