First Misc. Appeal

From plain reading sections 96 and 104 of the Code of the Code of Civil Procedure, it is clear that an appeal may lie against the-

  1. a. ad-interim order
  2. b. decree of original suit

In the High Court Division it is noticed that there is no appeal in the name of civil appeal. The civil appeals filed under section 96 and Order XLI of the Code of Civil Procedure are called First Appeal (F.A.). And the civil Appeals filed under section 104 and Order XLIII of the Code of Civil Procedure are called First Miscellaneous Appeal (F.M.A.).

First Miscellaneous Appeal (Appeal against ad-interim order):
Section 104 and Order XLIII of the Code of Civil Procedure enlists the orders which are appealable. No appeal lies against any order not specified in section 104 and Rule 1 of Order XLIII. Section 104 of the Civil Procedure Code provides that-

An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders:

  • – an order under section 35A
  • – an order under section 95
  • – an order under any of the provisions of this Code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree

No Appeal shall lie against any order specified under section 35A save on the ground that no order, or an order for the payment of a less amount, ought to have been made.

No Appeal shall lie from any order passed in appeal under sections 96 and 104 of the Code of the Code of Civil Procedure.

Every order under sections 35A and 95, the Code of Civil Procedure, is appealable, but when the order passed by a court from whose order, no appeal lies, such as where the small causes court passes an order against which revision under section 25 of the Small Causes Courts Act, 1887 is appropriate. No appeal shall lie against any order refusing cost under section 35A. This section does not control appeal under section 109 of the Code of Civil Procedure and Article 103 of the Constitution.