Section 105 CPC - Other Orders: When Can an Interlocutory Order Be Challenged?

Section 105 of the Code of Civil Procedure, 1908 governs challenges to court orders that are not independently appealable. It generally permits an error in such an order to be raised when appealing the final decree, but creates an important exception for appealable remand orders.

Text of Section 105 CPC - Other orders

The provision must be read with Section 104 CPC and Order XLIII of the First Schedule. The applicable statutory text and local amendments should be checked in the official India Code repository.

Meaning and scope of Section 105

During a civil suit, a court may pass numerous procedural or interim orders before finally deciding the case. Section 105 distinguishes between an order that the law expressly makes appealable and one whose alleged defect can ordinarily be challenged only in an appeal against the decree.

Section 105(1): Challenge to non-appealable orders

Sub-section (1) establishes that an appeal from an order is not available merely because a party disagrees with it. A separate appeal must be expressly authorized. If a decree is subsequently appealed, an error, defect or irregularity in an earlier order may be included as a ground in the memorandum of appeal if it affected the decision of the case.

Accordingly, a purely procedural complaint that had no bearing on the result does not, by itself, justify interference under this provision. The party must explain the relevant order, the alleged legal or procedural error, and how it influenced the decree.

Section 105(2): Special rule for appealable remand orders

Sub-section (2) is a specific exception. Where a remand order is independently appealable and an aggrieved party does not appeal it, that party is subsequently barred from challenging the correctness of that remand order. This rule promotes finality at the remand stage.

Not every direction sending a matter back is necessarily appealable. Whether a particular remand order is appealable depends on the governing provision, including Order XLIII Rule 1(u), read with the relevant provisions of Order XLI.

Related CPC provisions

• Section 2(2): Defines a decree, subject to statutory inclusions and exclusions. A decree is distinct from an ordinary interlocutory order.
• Section 2(14): Defines an order as the formal expression of a decision of a civil court which is not a decree.
• Section 96: Governs appeals from original decrees, subject to statutory exceptions.
• Section 104: Specifies categories of orders from which an appeal lies.
• Order XLIII Rule 1: Lists appealable orders under the CPC, including certain remand orders under clause (u).
• Order XLI Rules 23 and 23A: Address remand in specified appellate circumstances; Rule 25 provides a different mechanism for referring issues for findings.
• Section 99: Limits reversal or variation of a decree for errors or irregularities not affecting merits or jurisdiction.

Practical illustrations

Example 1 - Procedural order affecting the decree: A trial court rejects material evidence through an allegedly erroneous order. If that ruling affects the ultimate decree, the aggrieved party may raise the defect in an appeal against the decree, subject to the applicable appellate rules.

Example 2 - Appeal not expressly provided: A party wishes to challenge a routine interlocutory direction. Section 105 does not create an immediate appeal. Other remedies, if available, must be assessed separately.

Example 3 - Appealable remand order not challenged: An appellate court makes an appealable remand order and the aggrieved party does not appeal. Section 105(2) ordinarily prevents that party from later disputing the remand order's correctness.

How to raise an objection under Section 105(1)

1. Identify the earlier order and the precise error, defect or irregularity alleged.
2. Show how that order affected the decision embodied in the decree.
3. State the objection specifically in the memorandum of appeal against the decree.
4. Check whether the earlier order was independently appealable and whether any special bar, including Section 105(2), applies.
5. Comply with the applicable limitation period, court rules and requirements governing the appeal.

Section 105 does not independently extend limitation, confer appellate jurisdiction or replace the specific remedies provided elsewhere in law.

Frequently asked questions

Can every interim order be appealed immediately?

No. A separate appeal is available only where the CPC or another applicable law expressly permits it. Section 105(1) provides a way to raise certain errors when appealing the decree.

Can an earlier non-appealable order be challenged after the decree?

Yes, where a decree is appealed and the error, defect or irregularity in that order affected the decision of the case, subject to applicable legal restrictions.

What happens if an appealable remand order is not appealed?

Section 105(2) generally precludes the aggrieved party from disputing that remand order's correctness later.

Does Section 105 apply to second appeals?

Its operation remains subject to the distinct restrictions governing second appeals, including the substantial-question-of-law requirement under Section 100 CPC.

Official legislation and further reading

For the authoritative text and amendments, consult the Code of Civil Procedure, 1908 on India Code. For court decisions and authoritative case records, consult the Supreme Court of India. Applicability may vary where State or High Court amendments govern.

Legal information only. Procedural remedies depend on the facts, the relevant court rules and the law applicable to the proceedings.