Report No. 144

Chapter X

Orders 41 to End

10.1. Order 43, rule 1(r), Appeal against Interlocutory Orders Passed Ex Parte

10.1.1. Order 43, rule 1(r) provides for an appeal against "an order under rule 1, rule 2, rule 2(A), rule 4 or rule 10 of Order XXXIX". Rule 1 of Order 39, mentioned in Order 43, rule 1(r), relates to injunctions and connected orders.

10.1.2. Question for consideration.-

There appears to be a conflict of decisions on the question how far an appeal is maintainable against an order passed in appeal against an interlocutory order passed ex parte.

10.1.3. According to the High Court of Kerala1, such an appeal is maintainable.

1. V.T. Thomas v. Malayala Manorama Company Ltd., AIR 1989 Ker 48 (52), para. 14.

10.1.4. The Allahabad1 and Bombay2 High Courts also held such appeal to be maintainable, as also the Andhra Pradesh High Court3.

1. Zilla Parisluid v. Brahma Rishi Sharma, AIR 1910 All 376 (DB).

2. Jusa v. Ganpat, AIR 1976 Born 222 (223), paras. 1 and 3 (Dharamdhikari, J.).

3. Andhra Pradesh University v. P. Raju, (1974) 2 WR 17, cited in Jusa v. Ganpat, AIR 1966 Born 222.

10.1.5. But a different view has been taken by the High Courts of Kamataka1 and Madras.2 The Madras case would seem to disallow even an appeal against an original interlocutory order, if passed ex parte.

1. Parijath v. Kamalkslui Nayar, AIR 1982 Kant 105 (110), para. 15 (DB).

2. Abdul Shukoor Sahib v. Uma Chander, AIR 1966 Mad 352, paras. 5, 6 (DB).

10.1.6. The reasoning underlying the first view is that such an order is also an Order 39 of the Code.

10.1.7. The second view, which is the contrary view, is based on the reasoning that the "order under Order 39, rule 1," referred to in Order 43, rule 1, must be a decision based on some ground and not a mere preliminary order for maintaining the status quo.

10.1.8. The Orissa High Court1 also is of the view that "an order declaring to pass ex parte temporary injunction and issuing notice to other side" is not appealable.

1. Nalinprava Patnaik v. J. Das, AIR 1991 NOC 70 (On).

10.1.9. Recommendation.-

It seems proper to settle the conflict of decisions. It is suggested that in the interest of expeditious disposal of litigation, it should be enacted that an appellate order does not fall within Order 43, rule 1. This should not cause hardship, since in appropriate cases the remedy of revision would still be available. We recommend accordingly. The object can be achieved inserting in Order 43, rule 1 an Explanation on the above lines.