Analyzing Section 104 of the Code of Civil Procedure, 1908: The Contours of Appeals from Orders in India

Introduction

Section 104 of the Code of Civil Procedure, 1908 (CPC) stands as a critical provision governing the right to appeal against orders, as distinguished from decrees, in civil proceedings in India. While Section 96 of the CPC broadly provides for appeals from original decrees, Section 104, along with Order XLIII, Rule 1, delineates the specific, and limited, categories of orders that are amenable to appeal. This statutory framework aims to balance the need for judicial review with the imperative of preventing undue prolongation of litigation through interlocutory appeals. The interpretation of Section 104, particularly its sub-section (2) which bars further appeals from orders passed in appeal under the section, and its interaction with other laws such as the Letters Patent of High Courts and various special statutes, has been a subject of considerable judicial scrutiny. This article undertakes a comprehensive analysis of Section 104, drawing upon key legislative provisions and landmark judicial pronouncements to elucidate its scope, limitations, and evolving interpretation within the Indian legal system.

The Framework of Section 104 CPC

Section 104 of the CPC is structured to provide a seemingly exhaustive list of appealable orders, while also accommodating appeals provided under other laws. It is divided into two sub-sections, each with distinct implications.

Section 104(1): Orders from which Appeal Lies

Section 104(1) commences with the declaration that an appeal shall lie from the orders enumerated therein, and crucially, "from no other orders," subject to a significant saving clause. The orders specifically listed are:

• Clause (ff): An order under Section 35A (compensatory costs in respect of false or vexatious claims or defences).
• Clause (ffa): An order under Section 91 or Section 92 refusing leave to institute a suit of the nature referred to in those sections (public nuisances and public charities, respectively).
• Clause (g): An order under Section 95 (compensation for obtaining arrest, attachment or injunction on insufficient grounds).
• Clause (h): An order under any provisions of the CPC imposing a fine or directing the arrest or detention in civil prison of any person, except where such arrest or detention is in execution of a decree.
• Clause (i): "any order made under rules from which an appeal is expressly allowed by rules." This clause directly links Section 104(1) to Order XLIII, Rule 1 of the CPC, which lists various orders passed under different Orders of the CPC that are appealable. For instance, orders granting or refusing temporary injunctions under Order XXXIX, Rules 1 and 2 are appealable by virtue of Order XLIII, Rule 1(r) read with Section 104(1)(i) (A. Venkatasubbiah Naidu v. S. Chellappan And Others, 2000 SCC 7 695). Conversely, if an order is not enumerated in Order XLIII, Rule 1, it is generally not appealable under this clause (Shankunthala Bansal v. Puspalatha Gadia, Madras High Court, 2018, regarding orders under Order XXXVII, Rule 4).

The most pivotal part of Section 104(1) is its saving clause: "save as otherwise expressly provided in the body of this Code or by any law for the time being in force." This clause preserves rights of appeal that might exist under other provisions of the CPC itself or, more significantly, under other statutes, including special or local laws, and historically, the Letters Patent of various High Courts. As observed in P.S Sathappan (Dead) By Lrs. v. Andhra Bank Ltd. And Others (2004 SCC 11 672), this saving clause is of paramount importance in understanding the full scope of appeals from orders.

Section 104(2): The Bar on Further Appeals

Section 104(2) stipulates: "No appeal shall lie from any order passed in appeal under this section." This provision imposes a bar on a second appeal from an order where the first appeal was itself preferred under Section 104. For example, if a trial court passes an order refusing an injunction (appealable under Order XLIII, Rule 1(r) read with Section 104(1)(i)), and an appeal against this order is decided by a District Court, Section 104(2) would generally bar a further appeal to the High Court from the District Court's appellate order (Mangilal v. Ganpatlal, Madhya Pradesh High Court, 2019; Vijayan P.G. v. Mohanan, Kerala High Court, 2015). The purpose is to lend finality to appellate decisions on interlocutory orders at a certain stage.

Interplay with Letters Patent Appeals

The interaction between Section 104 CPC and the right of appeal under the Letters Patent of Chartered High Courts (Letters Patent Appeal or LPA) has been a complex area of law. An LPA typically lies from a judgment of a Single Judge of a High Court to a Division Bench of the same court.

In Shah Babulal Khimji v. Jayaben D. Kania And Another (1981 SCC 4 8), the Supreme Court held that Section 104 read with Order XLIII, Rule 1 applies to the original side of High Courts, meaning an appeal from an order of a Single Judge (on the original side) listed in Order XLIII, Rule 1 would lie to a Division Bench. The Court also adopted a broad interpretation of "judgment" for the purpose of LPAs, allowing appeals against interlocutory orders that affect valuable rights, even if not listed in Order XLIII, Rule 1. It clarified that Section 104 supplements, rather than derogates from, the Letters Patent.

The definitive pronouncement on the interplay between Section 104(2) and LPAs came in P.S Sathappan (Dead) By Lrs. v. Andhra Bank Ltd. And Others (2004 SCC 11 672). A Constitution Bench of the Supreme Court held that the saving clause in Section 104(1) ("or by any law for the time being in force") explicitly preserves the right of appeal conferred by the Letters Patent. Consequently, Section 104(2) does not bar an LPA against the order of a Single Judge of the High Court, even if that Single Judge was hearing an appeal under Section 104 against an order of a subordinate court. The LPA, being an appeal under a special law (Letters Patent) saved by Section 104(1), is not an "appeal under this section [Section 104]" for the purpose of the bar in Section 104(2). This interpretation significantly clarified the scope of LPAs in the context of appeals from orders.

This principle was also evident in Subal Paul v. Malina Paul And Another (2003 SCC 10 361), where an LPA was held maintainable against a Single Judge's decision in an appeal under Section 299 of the Indian Succession Act, 1925. The Supreme Court reasoned that the right of appeal under the special statute (Succession Act) to the High Court, and the subsequent LPA, were not curtailed by Section 104(2) CPC.

However, the position in P.S. Sathappan must be distinguished from cases like New Kenilworth Hotel (P) Ltd. v. Orissa State Finance Corpn. (1997) 3 SCC 462, as discussed in Sri. Nemi Chand Gangwal v. Sri. Suresh Kumar Jain (Gauhati High Court, 2014). In New Kenilworth Hotel, the appeal to the Single Judge of the High Court was itself an appeal under Section 104 CPC (specifically, O43 R1(r)) against an order of a subordinate court. A further LPA from the Single Judge's order was held to be barred by Section 104(2). The Supreme Court in P.S. Sathappan effectively clarified that if the Letters Patent itself provides for an appeal from the Single Judge's order (who might have heard an appeal under S.104), such an LPA is saved by S.104(1) and not hit by S.104(2). The apparent contradiction is resolved by understanding that P.S. Sathappan, being a Constitution Bench, authoritatively established that the saving in S.104(1) for "any law for the time being in force" (which includes LP) means that an LPA, if available under LP, is not an appeal "under this section [S.104]" for the purpose of the S.104(2) bar.

Interaction with Special Statutes

Section 4(1) of the CPC states that in the absence of any specific provision to the contrary, nothing in the Code shall be deemed to limit or otherwise affect any special or local law, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force. This principle of special law prevailing over general law is crucial when considering appeals under Section 104 CPC in matters governed by special statutes.

In Union Of India v. Mohindra Supply Co. (1962 AIR SC 25667), the Supreme Court dealt with Section 39 of the Indian Arbitration Act, 1940. Section 39(1) provided for appeals from certain orders in arbitration, and Section 39(2) explicitly barred any "second appeal" from an order passed in appeal under Section 39(1), except an appeal to the Supreme Court. The Court held that Section 39(2) of the Arbitration Act, being a provision in a special self-contained code, would prevail and bar an LPA that might otherwise have been available. The saving clause in Section 104(1) CPC would respect such a specific bar contained within the special law itself.

This principle was reiterated in Kandla Export Corporation And Another v. Oci Corporation And Another (2018 SCC 14 715), concerning the Arbitration and Conciliation Act, 1996. The Court held that the Arbitration Act is a self-contained code, and its appellate provisions (e.g., Section 50) are exhaustive. An appeal not maintainable under the Arbitration Act cannot be pursued under a more general statute like the Commercial Courts Act, 2015, merely because the latter provides a broader appellate mechanism. Section 104 CPC's saving clause would not operate to create an appeal where the special Act intends to restrict or exclude it.

In Essar Constructions v. N.P Rama Krishna Reddy (2000 SCC 6 94), the appealability of an order dismissing an application under Section 5 of the Limitation Act for condoning delay in an arbitration matter (under the 1940 Act) was determined by reference to the appellate provisions of the Arbitration Act (Section 39) itself, holding that such dismissal amounted to a refusal to set aside an award and was thus appealable under the special Act.

Conversely, as seen in Subal Paul, if the special statute provides for an appeal to the High Court (e.g., Section 299, Indian Succession Act) but does not contain a specific bar against further appeals (like Section 39(2) of the 1940 Arbitration Act did), then an LPA from the Single Judge's decision may be maintainable if permitted by the Letters Patent, as saved by Section 104(1) CPC.

Scope of "Orders Appealable Under Rules" (Section 104(1)(i) and Order XLIII, Rule 1)

A significant number of appeals from orders arise under Section 104(1)(i) read with Order XLIII, Rule 1 CPC. Order XLIII, Rule 1 enumerates specific orders passed under various other Orders of the CPC from which an appeal shall lie. This includes, for example, orders returning a plaint (Rule 1(a)), orders refusing to set aside dismissal of a suit (Rule 1(c)), orders rejecting an application to set aside an ex-parte decree (Rule 1(d)), orders granting or refusing temporary injunctions (Rule 1(r)), orders appointing or refusing to appoint a receiver (Rule 1(s)), and orders remanding a case (Rule 1(u)).

The courts have consistently held that if an order falls within any of the clauses of Order XLIII, Rule 1, an appeal is maintainable by virtue of Section 104(1)(i) (A. Venkatasubbiah Naidu v. S. Chellappan And Others, 2000 SCC 7 695; On The Death Of Rabindranath Das Adhikari, Calcutta High Court, 2018). Conversely, if an order is not specified in Order XLIII, Rule 1, no appeal lies under this particular limb of Section 104(1) (Shankunthala Bansal v. Puspalatha Gadia, Madras High Court, 2018). The right of appeal is a creature of statute, and Section 104 strictly confines it to the specified orders or as saved by other laws (Balkishan v. Shrilal And Others, Madhya Pradesh High Court, 1993).

The Bar of Section 104(2) in Non-LPA Contexts

In situations not involving LPAs (i.e., appeals within the hierarchy of subordinate courts or from a subordinate court to the High Court), Section 104(2) operates more directly. If an appeal from an order of a trial court (e.g., Civil Judge) is heard by a first appellate court (e.g., District Judge) under Section 104(1) read with Order XLIII, Rule 1, then Section 104(2) bars a further appeal (e.g., a second miscellaneous appeal to the High Court) from the order passed by the District Judge in that appeal. This ensures finality for such interlocutory appellate orders at the first appellate stage itself (Mangilal v. Ganpatlal, Madhya Pradesh High Court, 2019; Shobha Dinesh Supare And Another v. Dinesh Namdeorao Supare, Bombay High Court, 1992).

The Gauhati High Court in Sri. Nemi Chand Gangwal v. Sri. Suresh Kumar Jain (2014) highlighted an important distinction: if the main appeal before the first appellate court was an appeal from a decree (under Section 96 CPC), then an interlocutory order passed by that *appellate court* (e.g., an order granting or refusing temporary injunction in the appeal), if it falls under Order XLIII, Rule 1, would be appealable to the High Court. Such an appeal would be a *first* appeal from an order, and thus not barred by Section 104(2), as Section 104(2) only bars an appeal from an order passed in an appeal *which itself was under Section 104*.

Section 100-A CPC: An Overriding Bar

It is pertinent to note the impact of Section 100-A of the CPC, particularly after its amendment by Act 22 of 2002. Section 100-A, as it currently stands, provides that notwithstanding anything contained in any Letters Patent for any High Court or in any other instrument having the force of law or in any other law for the time being in force, where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie from the judgment and decree of such Single Judge. This provision acts as a specific statutory bar to LPAs in certain circumstances, effectively overriding the general position established in P.S. Sathappan regarding the maintainability of LPAs saved by Section 104(1). The scope of Section 100-A is to curtail further appeals from Single Judge decisions in appeals from original or appellate decrees/orders, thereby affecting the availability of LPAs that Section 104(1) might otherwise save (United India Insurance Co. Ltd. v. S. Surya Prakash Reddy, Andhra Pradesh High Court, 2006).