• What are the provisions of O43R3a in CPC

I want to know the provisions(mandatory provisions) of O43R3a in CPC
when O43R3a can be invoked and for what valid reasons
Asked 4 months ago in Civil Law

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12 Answers

Order 43 CPC prescribes which of the orders are appealable

 

suit against consent decree is not maintainable in view of the provision under Order 43 Rule 3(A).

 

 

it is well established by several decisions of the Apex Court that in view of the provisions of Order 43, Rule 3-A Civil Procedure Code (hereinafter referred to as ‘CPC’), independent proceedings for revoking a compromise decree are not maintainable.

Ajay Sethi
Advocate, Mumbai
82063 Answers
5153 Consultations

5.0 on 5.0

An application under the above provisions of law can be filed before appellate court to prefer an appeal against the aggrieved judgment of the trial court. 

T Kalaiselvan
Advocate, Vellore
72134 Answers
1076 Consultations

5.0 on 5.0

What is your actual query. There is no such provision in CPC.

Devajyoti Barman
Advocate, Kolkata
22335 Answers
343 Consultations

5.0 on 5.0

Where any Order is made under this Code against a party and thereupon any judgment is pronounced against such party and a decree is drawn up, such party may, in an appeal against the decree, contend that such Order should not have been made and the judgment should not have been pronounced.

Pradeep Bharathipura
Advocate, Bangalore
5020 Answers
266 Consultations

4.5 on 5.0

Order 43 provides for appeals against Orders. It has only 2 rules. There is no Rule 3A in Order 43. Please verify the same and clarify in the follow up question. 

Agam Sharma
Advocate, New Delhi
617 Answers
5 Consultations

5.0 on 5.0

Dear sir/madam,

Order 43 CPC Description

Order 43, Rule 1: An appeal will lie from the accompanying requests under the arrangements of Section 104, specifically:

  • An Order under Rule 10 of Order VII is for restoring a plaint to be exhibited to the correct court, with the exception of  the system which is determined in Rule 10-A of the Order has been pursued. Which says that court can add any person as party at any point of proceedings.
  • An Order under Rule 9, Order IX dismissing an application (for a situation open to appeal) for a request to put aside the expulsion of a suit.
  • An Order under Rule 13 of Order IX dismissing an application (for a situation open to appeal) for an order to put aside a decree passed out.
  • An Order under Rule 21 of Order XI, if there should be an occurrence of rebelliousness with an order for disclosure.
  • An Order under Rule 34 of Order XXI is for an issue with the draft of the report of support.
  • An Order under Rule 72 or Rule 92 of Order XXI saving or declining to put aside a deal.
  • An Order dismissing an application under sub-rule (1) of Rule 106 of Order XXI, gave that a request on the first application, in other words, the application alluded to in sub-rule (1) of that Order is appealable.
  • An Order under Rule 9 of Order XXII declining to put aside the reduction or rejection of a suit.
  • An Order under Rule 10 of Order XXII giving or declining to give leave.
  • An Order under Rule 2 of Order XXV dismissing an application (for a situation open to offer) for a request to put aside the rejection of suit.
  • An Order under Rule 5 or Rule 7 of Order XXXIII dismissing an application for authorization to sue as a poor individual.
  • Orders in interpleaded suits under Rule 3, Rule 4 or Rule 6 of Order XXXV.
  • An Order under Rule 2, rule 3 or rule 9 of Order XXXVIII.
  • An order under rule 1, rule 2, rule 2A, rule 4, or rule 10 of Order XXXIX;
  • An order for refusal under rule 19 of Order XL1 to re-concede, or under rule 21 of Order XLI to re-hear, an intrigue or appeal;
  • An order under rule 23 or rule 23-A of Order XLI remanding a case, where an appeal would lie from the pronouncement of the investigative court;
  • An order under rule 4 of Order XLVII giving an application for the survey.

1. Appeals from Orders

An appeal shall lie from the following Orders under the provisions of section 104, namely:-

(a) an Order under rule 10 of Order VII returning a plaint to be presented to the proper Court 1[except where the procedure specified in rule 10A of Order VII has been followed];

2* * * *

(c) an Order under rule 9 of Order IX rejecting an application (in a case open to appeal) for an Order to set aside the dismissal of a suit;

(d) an Order under rule 13 of Order IX rejecting an application (in a case open to appeal) for an Order to set aside a decree passed ex pane

2* * * * *

(f) an Order under rule 21 of Order XI;

2* * * * *

(i) an Order under rule 34 of Order XXI on an objection to the draft of a document or of an endorsement;

(j) an Order under rule 72 or rule 92 of Order XXI setting aside or refusing to set aside a sale;

1[(ja) an Order rejecting an application made under sub-rule (1) of rule 106 of Order XXI, provided that an Order on the original application, that is to say, the application referred to in sub-rule (1) of rule 105 of that Order is appealable.]

(k) an Order under rule 9 of Order XXII refusing to set aside the abatement or dismissal of a suit;

(l) an Order under rule 10 of Order XXII giving or refusing to give leave;

3* * * * *

(n) an Order under rule 2 of Order XXV rejecting an application (in a case open to appeal) for an Order to set aside the dismissal of a suit;

4[(na) an Order under rule 5 or rule 7 of Order XXXIII rejecting an application for permission to sue as an indigent persons:]

3* * * * *

(p) Orders in interpleader-suits under rule 3, rule 4 or rule 6 of Order XXXV; (q) an Order under rule 2, rule 3 or rule 6 of Order XXXVIII; (r) an Order under rule 1, rule 2 4[rule 2A], rule 4 or rule 10 of Order XXXIX; (s) an Order under rule 1 or rule 4 of Order XL;

(t) an Order of refusal under rule 19 of Order XLI to re-admit, or under rule 21 of Order XLI to re-hear, an appeal;

(u) an Order rule 23 [or rule 23A] of Order XLI remanding a case, where an appeal would lie from the decree of the Appellate Court;

5* * * *

(w) an Order under rule 4 of Order XLVII granting an application for review.

 

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Anik Miu
Advocate, Bangalore
1085 Answers
10 Consultations

5.0 on 5.0

- Order 23. Rule 3 provided that where it is proved that a suit has been adjusted wholly or in part by any lawful agreement or compromise, the court shall pass a decree in accordance therewith so far as it relates to the suit. 

- Further, Order 43. Rule 1(m) provided that an appeal shall lie from an order under Order 23, Rule 3. recording or refusing to record a compromise.

Mohammed Shahzad
Advocate, Delhi
6707 Answers
70 Consultations

5.0 on 5.0

 

 

1)  coronation of delay application to file appeal should be filed under section 5 of limitation act 

 


2) in case delay in filing the appeal is otherwise explained or emanates from the facts and circumstances of the case, filing of separate application under Section 5 of the Limitation Act can be exempted in the facts and circumstances of the case. As per ratio laid down in Bhagmal and others vs. Kunwal Lal and others, (2010) 4 PLR 267 and Rattan Chand vs. State of Punjab and others, 2007(1) HRR 116, if the sufficient cause emanates from the record, the filing of separate application for condonation of delay can be exempted.

 

3) no case for con donation of delay of 3 years has been made out 

 

4) Petitioner has to make out a case as to why appeal should be allowed . 

5) deliberate delay and laches are not ignored 

 

6) appeal would be dismissed 

Ajay Sethi
Advocate, Mumbai
82063 Answers
5153 Consultations

5.0 on 5.0

: “3-A. Bar to suit. — No suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful.” 

If anyone goes against the compromise in court the said section will bar the same

Prashant Nayak
Advocate, Mumbai
23327 Answers
49 Consultations

4.4 on 5.0

Dear sir/madam,

APPELLATE JURISDICTION*
(First Appeal under C.P.C.)
1. Provisions under which First Appeals are
preferred:
Against decree, as defined under Section 2(2),
regular First Appeal is provided under Section 96,
C.P.C.
Normally suit concludes by pronouncement of
(final) judgment under Order 20 Rule 1. (Such
judgment in view of its definition given under
Section 2(10) means the statement given by the
Judge on the grounds of the decree.) Thereafter, by
virtue of Order 20 Rules 6 and 7 the decree shall
be drawn which shall agree and be in accordance
with the judgment and shall be signed by the judge
on being satisfied about its correctness as such.
The decree shall bear date, the day on which the
judgment was pronounced (even though its
preparation and drawing up may take some time,
within 15 days as per Order 20 Rule 6-A). The
main ingredient of the decree is operative portion
of the judgment. According to Order 20 Rule 6
decree shall contain particulars of the claim and
shall specify clearly the relief granted or other
determination of the suit. Amount of costs are also
to be stated therein. (Rules 6, 6-A and 7 of order
20 quoted at the end)  Section 2(2), 2(9) and Section 96 C.P.C. are
quoted below:
"2 (2) "Decree" means the formal expression
of an adjudication which, so far as regards the
Court expressing it, conclusively determines the
rights of the parties with regard to all or any of
the matters in controversy in the suit and may be
either preliminary or final. It shall be deemed to
include the rejection of a plaint and the
determination of any question within section
144, but shall not includea) any adjudication from which an appeal
lies as an appeal from an order, or
(b) any order of dismissal for default.
2 (9) "Judgment" means the statement
given by the Judge on the grounds of a decree or
order."
96. Appeal from original decree. - (1) Save
where otherwise expressly provided in the body
of this Code or by any other law for the time
being in force, 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.
(2) An appeal may lie form an original
decree passed ex parte.
(3) No appeal shall lie from a decree passed
by the Court with the consent of parties.
(4) No appeal shall lie, except on a question
of law, from a decree in any suit of the nature
cognizable by Court of Small Causes, when the
amount or value of the subject-matter of the
original suit does not exceed (ten) thousand
rupees.”
Combined reading of both the above provisions
3
shows that against certain adjudications regular
First Appeal is maintainable and against certain
adjudications it is not. Both are given below:-
A. Appeal maintainable
a. Against a decree
b. Against preliminary decree
c. Against final decree
d. Rejection of plaint under Order 7 Rule 11
C.P.C.
e. Determination of any question within
Section 144 (restitution)
f. Original decree passed ex-parte.
B. Adjudication against which regular first
appeal does not lie:
a. Dismissal of suit in default
b. Determination of any question within
Section 47 [prior to the amendment of
1976-77 against such determination
regular first appeal was maintainable as it
was included in the definition of decree
under Section 2(2)]
c. Decree passed by the Court with the
consent of the parties.
d. From a decree in any suit of the nature
cognizable by JSCC when the amount or
valuation of the subject matter of the suit
does not exceed Rs. 10,000/ - except on a
question of law.
e. Against decree passed by the JSCC in view
4
of Section 7, through which Section 96
relating to appeal is not extended to courts
constituted under Provincial Small Causes
Courts Act, 1887. Section 25 of the PSCC
Act provides revision against decree passed
by the JSCCs on a question of law.
Against certain orders passed in a suit before
its final decision also appeal is provided under
Section 104 read with Order 43, Rule 1 C.P.C.
These appeals in the District Courts are called
Miscellaneous Appeals and in Allahabad High
Court as First Appeals from Orders (F AFO).
Section 104 specifically provides Miscellaneous
Appeals against orders granting compensatory
costs in respect of false or vexatious claims or
defences (Section 35-A), an order under Section 91
or 92 of C.P.C. refusing leave to institute a suit in
respect of public nuisance and other wrongful acts
affecting public; and public charities, an order
under Section 95 C.P.C regarding compensation
for obtaining arrest, attachment or injunction on
insufficient grounds or against certain orders
imposing fine or directing the arrest or detention in
civil prison. Thereafter, under Section 104 (l)(i)
C.P.C. it is provided that miscellaneous appeals
may also be filed against those order which under
the rules are made appealable. This refers to Order
43, Rule 1 C.P.C. under which 18 types of orders
are made appealable (some orders which were
earlier appealable, were deleted from Order 43 Rule
5
1 C.P.C. through amendment by Act No. 104 of 1976 w.e.f. 1.2.1977, hereinafter referred to as
amendment of 1976-77).
Under C.P.C. third type of appeal is provided
under Order 21, Rule 103 by virtue of which orders
passed on the applications for dispossession of
third party in execution of decree have been
conferred the status of decree and made
appealable. The rule is quoted below:-
0.21, R. 103
“Where any application has been
adjudicated upon under Rule 98 or Rule 100,
the order made thereon shall have the same
force and be subject to the same condition as to
an appeal or otherwise as if it were a decree".
Rules 98 to 103 were substituted through
amendment of 1976- 77, prior to that such types of
orders were not appealable but subject to the result
of the suit.
Similar is the position under O. 21 R. 58 (4) in
respect of attachment.
C. Appeals under, other Acts
Sometimes First Appeal is provided to the District
Judge or the High Court under other Acts like
appeal under Section 22 of U.P. Rent Control Act
(U.P. Act no. 13 of 1972), before the District Judge
against order passed under Section 21 of the Act
on the application of landlord for eviction / release
of the tenanted building on the ground of bonafide
need. Section 30 Workmen’s Compensation Act
6
provides appeal to the High Court against certain
orders of Commissioner but only on question of
law. First appeal to the High Court is provided
under Section 173 of Motor Vehicles Act against
orders passed by District Judge/Additional
District Judge for compensation in case of death
or injury under the same Act.
2. Right of Appeal vested right
Right of appeal is vested right and accrues on
the date on which first proceedings (suit,
application, objection etc.) are initiated. If the right
of appeal is taken away or restricted thereafter, it
does not affect right of appeal in respect of
pending proceedings, unless expressly so
expressed vide Videocon v. SEBI AIR 2015 SC
1042. However this principle does not apply to
revision.
3. Appeal, statutory right, can be made
conditional by Statute:
In Ganga Bai v. Vijay Kumar, AIR 1974 SC 1126
it has been held that suit is inherent, general or
common law right and it need not be provided by
any statute, however, appeal is a statutory right
and is maintainable only when some statute
provides the remedy of appeal. Following this
authority it has been held in Gujarat Agro Industry
v. Municipal Corporation Ahmadabad AIR 1999 SC
1818 that statute providing right of appeal can
make the right conditional like deposit of tax or its
part in case of appeal against assessment/
7
imposition of tax.
Right of appeal under Section 96 C.P.C. is not
conditional. Accordingly admission of such appeal
cannot be conditional e.g. it cannot be ordered
along with admission of appeal that in case certain
amount is not deposited within certain time order
of admission of appeal shall stand withdrawn or
recalled vide Management of M/s Devi Theatre v.
Vishwanath Raju AIR 2004SC332 and G.L. Vijain v.
K. Shankar AIR 2007 SC 1103 (Such condition may
be attached with stay order.)
4. Appeal against Preliminary and Final
Decrees:
In certain suits, two decrees are passed, one
is preliminary and the other is final, like partition
suit, in which, in the preliminary decree shares of
the parties are determined and in final decree
actual partition is done by metes and bounds.
Appeal is provided against both the decrees i.e.
preliminary as well as final. However, if against
the preliminary decree appeal is not filed then its
correctness cannot be questioned in an appeal
which is preferred against final decree as provided
under Section 97 C.P.C.
5. Appeal not to be allowed on trivial defects
in decree:
Section 99 CPC is quoted below-
“99. No decree to be reversed or modified for
error or irregularity not affecting merits or jurisdictionNo decree shall be reversed or substantially varied,
8
nor shall any case be remanded, in appeal on account
of any misjoinder or non-joinder of parties or causes of
action or any error, defect or irregularity in any
proceedings in the suit, not affecting the merits of the
case or the jurisdiction of the Court:
Provided that nothing in this section shall apply
to non- joinder of a necessary party
It has been held in Kuldip Kumar Dubey v.
Ramesh Chandra Goyal AIR 2015 SC 1135 that in
appeal decree cannot be set aside on the ground of
minor discrepancies in it, in view of section 99
CPC.
6. Withdrawal of appeal and its effect on
restoration application:
Against ex-parte decree in a suit restoration
application may be filed under Order 9 Rule 13
and appeal may also be preferred. Both the
remedies may be pursued simultaneously. Even if
restoration application is rejected, regular appeal
will have to be decided or merit but the point that
suit was wrongly decided ex parte as defendant
had sufficient cause for non appearance would no
more be open in appeal vide Bhanu Kumar Jain v.
Archana Kumar AIR 2005 SC 626 (3 judges)
However, if restoration is allowed then appeal
becomes infructuous as the decree against which
it was passed having been set aside does not
remain in existence.
If appeal is disposed of first the restoration
application becomes infructuous as the ex-parte
decree sought to be set aside merges in the
9
decree of appeal. Explanation to Order 9 Rule 13
provides as under:
“Explanation.-Where there has been an
appeal against a decree passed ex parte under
this rule, and the appeal has been disposed of
an any ground other than the ground that the
appellant has withdrawn the appeal, no
application shall lie under this rule for setting
aside that ex parte decree."
It has been held by the Supreme Court in
Shyam Sunder Sharma v. Pannalal Jaiswal AIR 2005
SC 226 (3 judges) that even if the appeal is
dismissed in default or as barred by time,
restoration application in suit becomes
infructuous and it is only and only withdrawal of
appeal which keeps the restoration application
alive and maintainable.
7. Appeal against decree, challenge to other
orders:
"Section. 105. Other orders .-(1) Save as
otherwise expressly provided, no appeal shall lie
from any order made by a Court in the exercise of
its original or appellate jurisdiction; but, where a
decree is appealed from, any error, defect or
irregularity in any order, affecting the decision of
the case, may be set forth as a ground of
objection in the memorandum of appeal.
(2) Notwithstanding anything contained In
sub-section (1), where any party aggrieved by an
order of remand [* * *] from which an appeal lies
10
does not appeal there from, he shall thereafter be
precluded from disputing its correctness."
Accordingly any order passed in suit before
final judgment and decree, if it affects ultimate
judgment and decree, its correctness can be
questioned in appeal against decree otherwise
not. To illustrate orders passed on temporary
injunction application do not affect the ultimate
judgment and decree hence there is no question of
challenging their correctness in the appeal against
decree. However order passed on application
seeking amendment in the pleading may affect the
ultimate judgment and decree hence if it is not
immediately challenged then its correctness can
be questioned in appeal against the decree. Under
Sections 12 and 16 of the U.P. Rent Control Act
(U.P. Act No. 13 of 1972) first vacancy declaration
order is passed and thereafter the building is
either released in favour of the landlord or allotted
to someone else. Against release or allotment order
revision to the District Judge is provided under
section 18 of the Act. The Supreme Court in
Ganpat Roy v. ADM, AIR 1985 SC 1635 has held that
vacancy declaration order can at once be
challenged through writ petition in the High Court.
However if vacancy declaration order is not
immediately challenged through writ petition still
its correctness can be questioned in revision
which is filed against ultimate order of release or
allotment on the principle of Section 105 C.P.C.
11
vide Achal Misra v. Rama Shanker Singh 2005 (5) SCC
531 (3 judges) (paras 11 to 13)
8. Powers of First Appellate Court:
First Appellate Court has got power to judge
the correctness of findings of facts as well as of
law recorded by the Trial Court. However, Second
Appeal to the High Court under Section 100 C.P.C.
lies only if the case involves substantial question
of law.
Section 107 C.P.C. provides as under:-
"107. Powers of Appellate Court- (1) Subject
to such conditions and limitations as may be
prescribed, an Appellate Court shall have power-
(a) to determine a case finally;
(b) to remand a case;
(c) to frame issues and refer them for trial;
(d) to take additional evidence or to require such
evidence to be taken.
(2) Subject as aforesaid, the Appellate Court
shall have the same powers and shall perform
as nearly as may be the same duties as are
conferred and imposed by this Code on Courts
of original jurisdiction in respect of suits
instituted therein.”
Accordingly most of the things which may be
done by the Trial Court can also be done by the
Appellate Court.
Under Order 6 Rule 17 C.P.C. plaint or
written statement may be amended. The rule itself
provides that the Court may, at any stage of the
proceedings, allow either party to alter or amend
his pleading. Accordingly, amendment in plaint or
12
written statement may be sought even during
pendency of appeal. However, in this regard great
caution must be taken and the first thing which is
to be seen is as to why amendment application was
not filed before the trial court during continuance
of the suit. Further, by virtue of the Amendment in
C.P.C. w.e.f. 1.7.2002 a proviso has been added to
Order 6 Rule 17 to the following effect:
"Provided that no application for
amendment shall be allowed after the trial has
commenced unless the court comes to the
conclusion that in spite of due diligence the
party could not have raised the matter before
the commencement of trial.”
After decision of the suit trial not only
commences but stands concluded. 

 

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Anik Miu
Advocate, Bangalore
1085 Answers
10 Consultations

5.0 on 5.0

There is no provisions in law law under Order 43 Rule 3a;

However you may please check if you had by typo error mentioned the above rule instead of O23 Rule 3A.

The provisions of Order 23 Rule 3A Is given below:

3A. Bar to suit - No suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful.

 

1.  The petitioner has to file a petition under section 5 of limitation act to condone delay in filing any petition or appeal.

2. You may have to contest or challenge the same during trial proceedings only.

3.  No

4. It has been made clear that there is such rule which you have mentioned in your query.

5. Deliberate delay and latches on the side f the petitioner cannot be ignored by court, however it is the duty of the respondent to point out the same before court and record his strongest objections.

 

T Kalaiselvan
Advocate, Vellore
72134 Answers
1076 Consultations

5.0 on 5.0

1. No, there is no provision in CPC

- However an application can be filed under section 5 of the Limitation Act on the suitable reasons for condoning delay. 

2. No, this not a valid reason 

3. No , a criminal case is not maintainable, where the trail court has already passed its direction , specially it is a civil nature dispute . 

4. Your query is out of provision of CPC . 

Mohammed Shahzad
Advocate, Delhi
6707 Answers
70 Consultations

5.0 on 5.0

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