Section 104 CPC specifies certain orders from which an appeal lies. It provides a limited right of appeal against specified interlocutory orders, unlike Section 96, which generally concerns appeals from decrees.
- Meaning of Section 104 CPC
- Section at a Glance
- Orders Appealable Under Section 104
- Important Limitation
- No Second Appeal
- Section 104 and Order XLIII
- Section 104 and Section 96
- Important Case Law
- Practical Example
- Practical Importance
- Importance for Law Students and Judiciary Exams
- Key Legal Principles
- Key Takeaways
Meaning of Section 104 CPC
Not every order passed by a civil court is appealable.
Section 104 identifies particular orders against which an appeal may be filed, subject to the conditions and limitations prescribed by the CPC.
Section at a Glance
| Particular | Details |
|---|---|
| Section | Section 104 CPC |
| Subject | Appealable orders |
| Nature | Appellate procedure |
| Main purpose | Provides appeal against specified orders |
| Related provision | Order XLIII Rule 1 |
Orders Appealable Under Section 104
An appeal lies from specified orders, including orders relating to matters such as:
- Penalty for failure to furnish security.
- Refusal to set aside or setting aside an order for security.
- Certain orders relating to attachment.
- Orders imposing or refusing certain procedural reliefs.
- Orders relating to restitution.
- Orders passed under provisions specifically made appealable by the CPC.
The detailed list is contained in Section 104(1) read with the relevant provisions and Order XLIII Rule 1 CPC.
Important Limitation
Section 104 does not create a general right of appeal against every interlocutory order.
Only those orders specifically made appealable by the CPC or another applicable law can be challenged through an appeal under this provision.
No Second Appeal
Section 104(2) provides an important limitation:
No appeal shall lie from any order passed in appeal under this Section.
Thus, the appellate order under Section 104 generally cannot be subjected to a second appeal under the CPC.
Section 104 and Order XLIII
Section 104 provides the statutory basis for appeals from specified orders.
Order XLIII Rule 1 sets out the principal list of appealable orders.
Therefore, both provisions should be read together while determining whether a particular interlocutory order is appealable.
Section 104 and Section 96
| Section 96 | Section 104 |
|---|---|
| Appeal from original decree | Appeal from specified orders |
| Broad right concerning original decrees | Limited statutory right |
| Generally first appeal | Interlocutory/order appeal |
| Order XLI | Order XLIII |
Important Case Law
Kandla Export Corporation v. OCI Corporation, (2018) 14 SCC 715
The Supreme Court explained the principle that a right of appeal must be specifically conferred by statute and cannot be assumed merely because a party is dissatisfied with an order.
Practical Example
A civil court passes an order that falls within the categories expressly made appealable under Section 104 and Order XLIII.
The aggrieved party may file an appeal in accordance with the prescribed procedure.
If the order is not one of the specified appealable orders, a regular appeal under Section 104 cannot ordinarily be filed merely because the order affects the party.
Practical Importance
Before filing an appeal against an interlocutory order, an advocate should check:
- Whether the order falls within Section 104.
- Whether it is specifically listed in Order XLIII Rule 1.
- Whether another statute provides an independent right of appeal.
- Whether any statutory restriction applies.
Importance for Law Students and Judiciary Exams
What to Remember
- Section 104 deals with appeals from specified orders.
- There is no general right of appeal against every interlocutory order.
- Order XLIII Rule 1 contains the principal list of appealable orders.
- Section 104(2) bars a further appeal from an order passed in appeal under Section 104.
Key Legal Principles
- Only specified orders are appealable under Section 104.
- The right of appeal is statutory and cannot be presumed.
- Order XLIII Rule 1 must be read with Section 104.
- Section 104(2) bars a further appeal from an appellate order passed under Section 104.
ALSO READ: Section 103 – Power of High Court to Determine Issues of Fact
Key Takeaways
| Concept | Principle |
|---|---|
| Section | Section 104 CPC |
| Subject | Appeal from specified orders |
| Nature | Limited appellate right |
| Related provision | Order XLIII Rule 1 |
| Further appeal | Barred under Section 104(2) |
