Order

A judicial order is any formal direction given by a court either in written, or orally. It covers a range of court directives that are not a judgment, or a decree and may be passed at any time during a trial, or after. The court may pass an order with or without application from the parties. They determine the relationship between the parties and do not constitute a pronouncement on the issues of the case itself.

Orders are either given during a trial or as a disposition as a result of a judgment. Orders being directives, cannot state that a suit is disposed of. Generally, orders also cannot be appealed, unless it is expressly provided for.

Legal definition

The statutory definition of an order is provided in the Code of Civil Procedure, 1908. The act defines ‘order’ as  ‘formal expression of any decision of a Civil Court which is not a decree.’

The act also has provisions for specific iterations of orders such as an order for discovery, issue summons, for arrest or detention, to transfer suits, or payment of costs in a suit etc.

Types of order

There are two broad parameters on which appeals can be categorised: Provision for appeal, nature of the order.

Appealability

Firstly, an order is either appealable or non-appealable.

Appealable orders are those in whose an appeal lies. The provisions for the same are given in S 104 of the Code of Civil Procedure, 1908. Other than that, only orders which affect a decree that has been appealed against can use the order as a ground. Where an appeal on order lies the decree issued on the appeal, is not appealable. Apart from those expressly allowed for, all orders are non-appealable, that is, there does not lie an appeal on the order by the court.

Finality

The second of distinction is whether the order is interlocutory or final.

An interlocutory order, or interim order, is one that is given to the parties during the pendency of the suit. It may relate to preserving the status quo of the issues in the suit while the court eventually decides what is to be done in its judgement. Interim orders are generally pleaded under the Specific Relief Act, 1963, or in the exercise of the power of the court under S 151 of the Code of Civil Procedure, 1908.

Final orders are those that conclusive determine the directives to the parties in a suit. For example, order as to costs after the judgment has been passed. Or orders rejecting a plea/plaint, i.e. rejection orders. Other types of orders generally issued are permanent orders, mandatory orders for lower courts, or public offices, bail orders, speaking or non-speaking orders, search orders, stay orders, restraining orders, rejection orders and the like.

Examples

Orders in Criminal cases

Orders can also be given under specific circumstances laid out in the Code of Criminnal Procedure, 1973. The prominent ones are order for address of previous convict (S 356), Order for compensation(S. 357), costs in non-cognizable cases (S. 359), probation (S. 360), or execution of high court sentences (S. 413).

Execution of Order

Directives in orders are executed according to the same provisions that apply to decrees. Orders, like decrees, can be executed or transferred according to the provision to another court for the same. That is, orders can be executed by the court which passed it, or the court to which it has been sent to for execution.(section 38)

The Civil Procedure Code also specifies the modes of execution. This is done by application from the decree-holder, but the court is bound to use modes according to the rules in Order 21 of the Civil Procedure Code.

Recall of Order

Courts have the power to correct its own mistakes. While in the case of orders, there is no explicit provision to recall an order specifically, the court may do so with its discretion under section 151 of the Code of Civil Procedure which gives the court power to do complete justice on application. However the scope of the same is limited as the power given under section 151 is only applicable when no other statutory remedy exists. In addition to this limit the court also limits itself to cases where it was obtained by fraud, the court was misled by the parties, or when the court commits a mistake. In criminal cases, this may constitute recalling of witnesses, or re-examination and the like.

Order in Statutory Bodies

Court orders are different from orders that form part of secondary legislation that follows statutes. For example, in the Code of Civil Procedure, 1908 statute, Orders are legal instruments like ordinances, or by-laws. Like Order XXXIX which lays out conditions under which and interlocutory application may be granted is a legislative order and the courts are bound by it like any other statute. This comes under the definition of ‘Indian Law’ as defined in S. 3(29) of the General Clauses Act, 1897.

Suggested reading

• C K Takwani, Code of Civil Procedure, 9th ed, 2021 EBC
• https://www.ebcwebstore.com/product/civil-procedure-cpc?products_id=740

• Nick Robinson, 'Expanding Judiciaries: India and the Rise of the Good Governance Court' (2009) 8 Wash U Global Stud L Rev 1, 16.

• https://services.ecourts.gov.in/ecourtindia_v6/?p=courtorder/index&app_token=f0315e1731d5e9b460ba50778faee8cdf6d9ded52619e63936e1c27eadde9554#?app_token=1bf3e0ea99e1150323c570a33ab95f60c975b8f3a185efe7b12f1140f9ee9874
• https://blog.ipleaders.in/judgement-and-order-under-crpc/#Provisions_with_regard_to_Order_under_CrPC
• https://www.barelaw.in/the-role-of-the-supreme-court-in-ensuring-compliance-with-court-orders/
• B&B ASSOCIATES LLP, https://bnblegal.com/article/decree-judgment-and-order-under-code-of-civil-procedure-1908/
• IPLEADERS, https://blog.ipleaders.in/distinguishing-order-decree-judgement-cpc-1908/ (last visited 9 Jan. 2024)
• LEGAL SERVICE INDIA, https://www.legalserviceindia.com/legal/article-14219-judgment-vs-decree-v-s-order-same-or-different-.html (last visited 8 Jan. 2024)
• https://www.scconline.com/blog/post/2023/01/19/power-to-recall-orders-not-exercised-when-ground-for-vacating-judgment-was-available-delhi-high-court-dismisses-application-for-recall-of-order-under-section-151-crpc-legal-research-updates-news/