Order XLIII Rule 2 CPC - Procedure for Appeals from Orders

Order XLIII Rule 2 of the Code of Civil Procedure, 1908 (CPC) explains which procedural rules govern appeals from orders. It applies the rules of Order XLI, as far as they can appropriately operate in such appeals.

Text of Order XLIII Rule 2 CPC

Rule 2 - Procedure:

"The rules of Order XLI shall apply, so far as may be, to appeals from orders."

The words "so far as may be" are important. They mean that the procedural provisions governing appeals from decrees under Order XLI are applied to appeals from orders to the extent they are suitable and consistent with the nature of the order appealed against and any governing statutory provision.

Meaning and scope of Rule 2

Order XLIII Rule 2 does not independently create a right of appeal. An appeal from an order must be authorized by Section 104 CPC, Order XLIII Rule 1 CPC, or another applicable statutory provision. Once such an appeal is maintainable, Rule 2 supplies the procedural framework by referring to Order XLI.

Relevant provisions of the CPC

Section 104 - Orders from which appeal lies

Section 104 specifies classes of appealable orders and permits appeals from orders expressly made appealable by the rules, subject to the statutory limitations. Section 104(2) generally bars a further appeal from an order passed in appeal under that section.

Order XLIII Rule 1 - Appeal from orders

This rule lists specified orders against which an appeal may be filed, including certain orders concerning return of plaints, dismissal or restoration applications, temporary injunctions, receivers and remands. The exact clause and applicable amendments must be checked before filing.

Order XLI - Appeals from original decrees

Order XLI lays down procedures for appellate proceedings, including presentation of the memorandum of appeal, admission and hearing, notices, stay applications, additional evidence in limited circumstances and appellate judgments. Under Order XLIII Rule 2, these rules apply to appeals from orders only where appropriate.

Section 106 - Court to hear appeals

Section 106 identifies the court competent to hear an appeal from an order, subject to the particular circumstances and applicable law.

How the procedure works

Check appealability: Identify the precise statutory provision authorizing an appeal against the challenged order.
Identify the appellate forum: Apply Section 106 CPC and any relevant special or local provisions.
Prepare the memorandum: State the challenged order, grounds of objection and relief sought, following applicable Order XLI provisions and court rules.
Observe limitation: Check the Limitation Act, 1963 and any special limitation rule. Rule 2 itself does not prescribe a uniform filing period.
Seek interim protection where necessary: Filing an appeal does not by itself automatically stay the operation of the challenged order; appropriate relief must be sought.
Attend appellate proceedings: The appellate court considers the appeal under the applicable provisions of Order XLI, adapted to the nature of an appeal from an order.

Does every order carry a right of appeal?

No. The CPC distinguishes appealable orders from non-appealable interlocutory orders. Where an immediate appeal is not provided, Order XLIII Rule 1A and Section 105 CPC may be relevant to raising objections in an appeal against a subsequent decree, subject to their requirements and exceptions.

Official legal references

Frequently asked questions

What does Order XLIII Rule 2 CPC provide?

It provides that the rules of Order XLI apply, so far as may be, to appeals from orders.

Does Rule 2 make all interlocutory orders appealable?

No. Appealability depends on Section 104, Order XLIII Rule 1 or another applicable law.

Is an appeal from an order automatically stayed?

No. A stay ordinarily requires an appropriate order of the competent court.

Legal information is general in nature. State amendments, High Court rules, special statutes and subsequent judicial decisions may affect a particular case.