Appealability of Orders under Section 151 CPC

Navigating the Labyrinth: Appealability of Orders under Section 151 of the Code of Civil Procedure, 1908 in India

Introduction

Section 151 of the Code of Civil Procedure, 1908 (CPC) preserves the inherent powers of civil courts in India to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court. While these powers are extensive and crucial for the administration of justice, the appealability of orders passed thereunder has been a subject of considerable judicial scrutiny. This article delves into the legal principles governing the appealability of orders made under Section 151 CPC, drawing upon statutory provisions and key judicial pronouncements from Indian courts. The central inquiry is to determine when, if ever, an order passed by invoking the inherent jurisdiction of the court can be subjected to appellate review.

The Statutory Framework for Appeals in Civil Procedure

The right to appeal is a statutory right and not an inherent one. In Indian civil jurisprudence, the primary provisions governing appeals from original decrees are found in Section 96 of the CPC, which states that an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court. Appeals from orders, as distinct from decrees, are governed by Section 104 and Order XLIII, Rule 1 of the CPC. Section 104(1) specifies that an appeal shall lie from certain enumerated orders and, save as otherwise expressly provided in the body of the Code or by any law for the time being in force, from no other orders. Order XLIII, Rule 1 further lists specific orders from which an appeal shall lie. The combined effect of these provisions is that unless an order is specifically made appealable by the CPC or any other statute, no appeal can be maintained against it.

Section 151 CPC: The Inherent Powers of the Court

Section 151 CPC provides: "Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court." The Supreme Court in Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal (1962 AIR SC 527) clarified that these inherent powers are not exhaustive and are to be invoked only when no specific statutory provisions apply. They are supplementary and should not conflict with explicit statutory provisions. The Court observed that inherent powers are essential for a court to perform its duties and can be exercised to issue temporary injunctions in circumstances not covered by Order XXXIX CPC, if the interests of justice so require. However, this power is to be exercised with caution and not in contravention of the legislative intent or statutory framework.

The Supreme Court in Shipping Corporation Of India Ltd. v. Machado Brothers And Others (2004 SCC 11 168) reiterated that Section 151 CPC grants courts inherent powers to prevent abuse of their processes, which are supplementary to the express provisions of the CPC and must be exercised in harmony with them. This case involved the dismissal of an infructuous suit under Section 151 CPC, emphasizing that maintaining a suit without a valid cause of action constitutes an abuse of the court's process.

The General Principle: Non-Appealability of Orders Simpliciter under Section 151 CPC

The foundational principle regarding the appealability of orders under Section 151 CPC was laid down by the Supreme Court in Keshardeo Chamria v. Radha Kissen Chamria And Others (1953 AIR SC 23). The Court unequivocally held that an order made under Section 151 CPC simpliciter is not appealable. It reasoned that under the CPC, only specific orders mentioned in Section 104 and Order XLIII, Rule 1 are appealable, and an order under Section 151 is not included in this category. The Court noted, "An order made under section 151 is not included in the category of appealable orders." (Keshardeo Chamria v. Radha Kissen Chamria And Others, Supreme Court Of India, 1952, as per provided material). This principle has been consistently followed.

The Orissa High Court in Dinamani Debi v. Paramananda Choudhury And Another Opp Parties. (1980 SCC ONLINE ORI 126) affirmed this, stating, "An order under section 151, Civil Procedure Code does not come within the ambit of section 104, Civil Procedure Code... It is, therefore, obvious that if an order is passed under section 151, Civil Procedure Code no appeal lies under Order 43, rule 1, Civil Procedure Code." Similarly, the Calcutta High Court in Rathindra Nath Bose v. Jyoti Bikash Ghosh And Others Opposite Parties. (1975 SCC ONLINE CAL 74) observed, "Now an order under Section 151 simpliciter is not appealable as was held in Keshardeo v. Radha Kissen, AIR 1953 SC 23." The Karnataka High Court in Veerabhadrappa v. Mayappa* (1992), citing a Full Bench of the Allahabad High Court, also noted that if an order is passed under Section 151 CPC, no appeal lies. The Madras High Court in K. Durai v. Competent Authority (2014) reiterated this, citing Keshardeo Chamria.

Exceptions and Nuances: When Substance Prevails Over Form

Despite the general rule of non-appealability, judicial decisions have carved out nuances, primarily based on the principle that the substance of the order, rather than the mere invocation of Section 151, determines its appealability.

Orders Substantively Falling Under Appealable Provisions

If an application is incorrectly labeled under Section 151 CPC, but the relief sought and the order passed thereon squarely fall within the purview of a specific provision of the CPC that makes such an order appealable, an appeal will lie. The Calcutta High Court in Ravi Maharia v. Reliance Petroleum Limited And Ors. (2000) held that if an application, though captioned under Section 151, clearly seeks relief under Order XXXIX Rules 1 and 2 CPC (temporary injunctions), the rejection of such an application on merits would be appealable under Order XLIII, Rule 1(r) CPC. The court emphasized that "Litigants cannot be allowed to by-pass the provisions of the Code by wrongly describing an application as one under section 151 of the Code though it really comes within the purview of Order 39 Rules 1 and 2 resulting in deprivation of the right of appeal of a litigant."

Similarly, the Patna High Court in Sheosagar Singh v. Sitaram Kumhar And Another (1950) considered an order rejecting a petition for compromise. Although Section 151 might have been involved, the court found that by rejecting the petition, the lower court had refused to record the compromise under Order XXIII, Rule 3 CPC, making the order appealable under Order XLIII, Rule 1(m) CPC.

The Rajasthan High Court in Bhinya Ram Son Of Shera Ram v. Hukma Ram (1994) held that if a composite application is filed under Order XXXIX Rules 1 and 2 and Section 151 CPC, and the court grants or refuses an injunction (including a mandatory injunction claimed under Section 151 in conjunction with Order XXXIX), such a composite order would be appealable. This is because part of the order clearly falls under an appealable category. The Andhra Pradesh High Court in C. Nagarathnamma v. District Panchayat Officer, Chittoor (1995) also held that an order on an injunction petition filed under Order XXXIX Rule 1 read with Section 151 CPC is appealable under Order XLIII, Rule 1(r).

Orders Affecting Substantive Rights or Akin to Section 47 CPC

In Keshardeo Chamria (1953 AIR SC 23), while establishing the general rule of non-appealability, the Supreme Court distinguished certain older High Court decisions where orders setting aside execution sales under inherent powers were held appealable. The rationale in those cases was that such orders fell within the ambit of Section 47 CPC (questions to be determined by the Court executing decree). This implies that if an order under Section 151 CPC, by its nature and effect, adjudicates upon matters that are substantively covered by Section 47 (relating to the execution, discharge, or satisfaction of a decree), it might be treated as an appealable order (or rather, a decree or an order tantamount to a decree under Section 47 for appeal purposes). However, the Court in Keshardeo Chamria found no analogy between an order setting aside an execution sale and an order setting aside the dismissal of an application, the latter being non-appealable if purely under Section 151.

The Supreme Court in Central Bank Of India Ltd. v. Gokal Chand (1967 AIR SC 799), while dealing with the Delhi Rent Control Act, 1958, held that the phrase "every order of the Controller" for the purpose of appeal does not include interlocutory orders that are procedural and do not affect the substantive rights or liabilities of the parties. By analogy, many orders under Section 151 CPC are purely procedural and thus would not be appealable unless they affect substantive rights in a manner contemplated by an appealable provision.

Distinction from Orders under Specific Appealable Provisions

Remand Orders: Section 151 v. Order XLI

Orders of remand can be passed under specific provisions like Order XLI, Rules 23 or 23A CPC, which are appealable under Order XLIII, Rule 1(u). However, if a court remands a case invoking its inherent powers under Section 151 CPC, and the conditions of Order XLI, Rules 23 or 23A are not met, such a remand order is generally not appealable. The Rajasthan High Court in Madholal v. Bridhichand (1950 SCC ONLINE RAJ 41) held that a remand order described by the lower appellate court as being under Order XLI, Rule 23 and Section 151 CPC, but which in fact could only be under Section 151, was not appealable and the appeal was treated as a revision. The Orissa High Court in Dinamani Debi (1980) also confirmed that an order of remand under Section 151 CPC is not appealable, though a revision may lie.

Injunctions: Section 151 v. Order XXXIX

As discussed, orders granting or refusing injunctions under Order XXXIX, Rules 1 and 2 are appealable under Order XLIII, Rule 1(r). If an injunction is sought or granted purely under Section 151 CPC because the circumstances are not covered by Order XXXIX, the appealability becomes contentious. The Supreme Court in Manohar Lal Chopra (1962 AIR SC 527) affirmed the court's power to grant injunctions under Section 151 in such situations. The Calcutta High Court in Rathindra Nath Bose (1975) opined that if an injunction order cannot be sustained under Order XXXIX but is passed under Section 151, it would not be appealable as an order under Section 151 simpliciter. However, as seen in Ravi Maharia and Bhinya Ram, courts often look at the substance, and if the relief is essentially injunctive in nature akin to Order XXXIX, appealability is often upheld.

Limitations on Invoking Section 151 CPC

The Supreme Court in Nain Singh v. Koonwarjee And Others (1970 SCC 1 732) laid down crucial limitations on the exercise of inherent powers. It held that inherent powers under Section 151 CPC cannot be exercised as an appellate power. Furthermore, "Under the inherent power of courts recognized by Section 151, CPC, a court has no power to do that which is prohibited by the Code. Inherent jurisdiction of the court must be exercised subject to the rule that if the Code does contain specific provisions which would meet the necessities of the case, such provisions should be followed and inherent jurisdiction should not be invoked." This means if a party had a remedy under an appealable provision (e.g., appealing a remand order under Order XLI, Rule 23) but failed to avail it, they cannot later seek to challenge its correctness by invoking Section 151 or argue that an order under Section 151 in that context creates a new right of appeal. This was reiterated in Lt. Col S.D Surie v. Paramount Enterprises And Ors. S (Delhi High Court, 2011).

The Role of Judicial Discretion and Ends of Justice

The very purpose of Section 151 CPC is to ensure that procedural law does not become an impediment to substantive justice. In Sushil Kumar Sen v. State Of Bihar (1975 SCC 1 774), the Supreme Court, while dealing with a different issue, made a poignant observation relevant to the spirit behind inherent powers:

Parliament, I hope, will consider the wisdom of making the Judge the ultimate guardian of justice by a comprehensive, though guardedly worded, provision where the hindrance to rightful relief relates to infirmities, even serious, sounding in procedural law... The wages of procedural sin should never be the death of rights.

Unknown Author (as per provided material)

In line with this, the Supreme Court in Ram Prakash Agarwal And Another v. Gopi Krishan (Dead Through Lrs.) And Others (2013) recognized that a court might restore a case or set aside an ex-parte order in the exercise of its inherent powers under Section 151 CPC where Order IX CPC may not be attracted, to remedy a miscarriage of justice, based on the principle of actus curiae neminem gravabit (an act of the court shall prejudice no person). The appealability of such corrective orders would, again, likely depend on whether they substantively equate to an order under an appealable provision (e.g., setting aside an ex-parte decree under Order IX Rule 13, which is appealable).

The Allahabad High Court in Smt. Garima Singh v. Sanjai Singh And Others (1996), citing a Full Bench, held that a Munsif could recall an order dismissing an execution application inadvertently under Section 151 CPC and restore it, rejecting the argument that such an order was appealable and hence Section 151 could not be invoked for recall in those specific circumstances of inadvertent error.

Alternative Remedy: Revision under Section 115 CPC

While an appeal may not lie against an order passed purely under Section 151 CPC, such an order may be amenable to the revisional jurisdiction of the High Court under Section 115 CPC. This remedy is available if the subordinate court appears to have exercised a jurisdiction not vested in it by law, or to have failed to exercise a jurisdiction so vested, or to have acted in the exercise of its jurisdiction illegally or with material irregularity. Several High Courts, including the Orissa High Court in Dinamani Debi (1980) and the Gauhati High Court in Madanlall Agarwalla v. Tripura Modern Bank Ltd. Opposite Party. (1953), have acknowledged that a revision may be filed against an order under Section 151 CPC if the conditions for revision are met.

Conclusion

The appealability of orders passed under Section 151 CPC is a nuanced area of Indian civil procedure. The general rule, firmly established by the Supreme Court in Keshardeo Chamria, is that an order passed simpliciter under Section 151 CPC is not appealable, as appeals are creatures of statute and such orders are not enumerated as appealable in the CPC. However, this rule is subject to the crucial qualification that courts will look to the substance rather than the form of the order. If an order, though purportedly made under Section 151, in substance falls within the scope of a specifically appealable provision (such as those relating to injunctions under Order XXXIX or recording of compromises under Order XXIII), an appeal may lie. Furthermore, orders under Section 151 that determine substantive rights akin to matters covered by Section 47 CPC might also be considered appealable. The inherent powers themselves cannot be used to confer appellate jurisdiction or bypass specific remedies provided by the Code. In cases where an appeal is not available, the remedy of revision under Section 115 CPC might offer an avenue for redress against erroneous orders passed under Section 151, provided the stringent conditions for invoking revisional jurisdiction are satisfied. Ultimately, the judiciary strives to balance procedural propriety with the overarching mandate of Section 151 CPC – to achieve the ends of justice and prevent abuse of the court's process.