Navigating Interlocutory Challenges: An Analysis of Section 105 of the Civil Procedure Code, 1908

Introduction

Section 105 of the Code of Civil Procedure, 1908 (CPC) stands as a crucial provision governing the challenge to interlocutory orders in the course of civil litigation in India. Its primary objective is to streamline the appellate process by generally deferring challenges to such orders until the appeal against the final decree, thereby preventing undue interruption and delay in the trial proceedings. This provision seeks to strike a balance between the right of a litigant to question erroneous orders and the need for expeditious disposal of suits. Section 105 comprises two sub-sections: sub-section (1) lays down the general rule for challenging interlocutory orders in an appeal from the final decree, while sub-section (2) carves out a specific exception concerning orders of remand. This article undertakes a comprehensive analysis of Section 105 CPC, examining its scope, judicial interpretation, and interplay with other relevant provisions of the Code, drawing upon statutory language and pertinent case law.

The Framework of Section 105 CPC

Section 105 of the CPC reads as follows:

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 does not appeal therefrom, he shall thereafter be precluded from disputing its correctness.

Section 105(1): The General Right to Challenge Interlocutory Orders

Sub-section (1) of Section 105 embodies the principle that, subject to express provisions to the contrary, appeals from interlocutory orders are generally not permitted. Instead, it provides a mechanism for a party aggrieved by an interlocutory order to challenge it in an appeal preferred against the final decree in the suit. The condition precedent for such a challenge is that the alleged error, defect, or irregularity in the interlocutory order must have affected the decision of the case. The Supreme Court in Satyadhyan Ghosal v. Deorajin Debi^[1], a case frequently cited, affirmed that interlocutory orders can be challenged in appeals from final orders. This principle was reiterated in Kshitish Chandra Bose v. Commissioner Of Ranchi^[2], which noted that Satyadhyan Ghosal established that interlocutory orders, such as remands (if not appealable or if appealable but the conditions for S.105(2) are not met), can be challenged in appeals from final orders.

Section 105(2): The Specific Bar for Unchallenged Appealable Remand Orders

Sub-section (2) carves out a significant exception to the general rule in sub-section (1). It mandates that if a party is aggrieved by an order of remand from which an appeal lies (typically under Order XLIII, Rule 1(u) CPC), and fails to appeal against such an order, they are subsequently barred from disputing its correctness. This provision underscores the legislative intent to impart finality to appealable remand orders if they are not challenged at the appropriate stage. The Supreme Court in Nain Singh v. Koonwarjee And Others^[3] directly addressed a remand order in the context of Section 105(2), implying the preclusive effect if an appealable remand order is not challenged.

Judicial Interpretation of Section 105(1): Scope and Limitations

"Any Order": What Constitutes an Interlocutory Order for Section 105(1)?

The term "any order" in Section 105(1) refers to interlocutory orders that are not decrees. An order, to be challenged under this section, must be one made by the court in the exercise of its original or appellate jurisdiction during the pendency of the suit, which does not finally determine the principal matter in question but relates to some collateral aspect. For instance, an order under Section 49(1) of the Land Acquisition Act, 1894, was held not to be a "decree" and thus not appealable under Section 96 CPC, as decided in Deep Chand And Others v. Land Acquisition Officer And Others^[4]. Such non-decreetal orders, if interlocutory and affecting the case's decision, could potentially fall within Section 105(1). Orders concerning substitution of legal representatives, such as the one discussed in Executive Director Of Usha Sewing Machine Works Ltd., And Another v. Sm. Sujata Roy And Others^[5], are typically interlocutory.

A complex scenario arises with orders like the return of a plaint under Order VII, Rule 10 CPC, which is appealable under Order XLIII, Rule 1(a). In Sri Amar Chand Inani v. Union Of India^[6], the Supreme Court considered arguments on whether such an order, if not appealed, could be challenged under Section 105 in an appeal from a decree passed by the court to which the plaint was subsequently presented. The contention was that the order returning the plaint was a final order terminating proceedings in that specific court, and thus the suit in the subsequent court was not a continuation, potentially rendering Section 105 inapplicable. The Court, however, did not definitively decide this issue.

The Crucial Test: "Affecting the Decision of the Case"

A critical prerequisite for challenging an interlocutory order under Section 105(1) is that the error, defect, or irregularity in such an order must be "affecting the decision of the case." The Allahabad High Court in Babu Ram v. Banki Behari Lal^[7] (also cited as Babu Ram (Decree-Holder) v. Banke Bihari Lal (Judgment-Debtor)^[8]) interpreted this phrase to mean "affecting the merits of the case." The Court held that orders like setting aside an ex-parte decree or setting aside an abatement did not affect the merits of the case, as they primarily dealt with procedural aspects or the array of parties, and thus could not be challenged under Section 105 in an appeal from the final decree. The Bombay High Court in Mary Dias And Her Husband v. Pedro Machado (Since Deceased) And His Wife Others^[9] reiterated that the words "affecting the decision of the case" mean affecting the decision of the case on its merits, citing Satyadhyan Ghosal. Conversely, an order striking off a defence, as considered in Khairunissa v. Anwar Khan Samdullah Khan^[10], would likely be considered as affecting the merits and thus challengeable under Section 105.

Challenging Appealable Interlocutory Orders Not Appealed (Excluding Remands)

A significant aspect of Section 105(1) is its application to interlocutory orders that are themselves appealable (e.g., under Order XLIII, Rule 1 CPC) but against which no appeal was preferred. Barring the specific instance of remand orders covered by Section 105(2), the general rule appears to be that failure to appeal an appealable interlocutory order does not preclude a challenge to it under Section 105(1) in the appeal against the final decree. The Supreme Court in Thailammal And Others v. Janardhan Raju And Others^[11] observed that once an appeal is filed against the trial court's decree, the appellant is entitled to challenge the correctness of any interlocutory order passed in the suit by virtue of Section 105 CPC, and it is not necessary to prefer an independent appeal against the interlocutory order, even if appealable. This principle was also affirmed by the Madras High Court in Mohammed Haneef v. Haleel Basha And Another^[12], stating that the dismissal of an interlocutory application (in that case, under Section 9 of the City Tenants Protection Act) does not bar the remedy, and Section 105 CPC enables such a challenge in the appeal against the final decree.

Impact of Prior Revisional Challenge on Section 105(1) Remedy

The question arises whether an unsuccessful challenge to an interlocutory order under the revisional jurisdiction (Section 115 CPC) bars a subsequent challenge to the same order under Section 105(1). The Calcutta High Court in Shalimar Chemical Works Limited v. Usha Holding & Enclave Private Limited^[13], relying on the Supreme Court's decision in Ishwar Dass Jain (Dead) Through LRS. v. Sohan Lal (Dead) By LRS.^[14], suggested that even if an application for addition of a party was rejected and that rejection was affirmed in revision, the legality of the original order could still be challenged under Section 105 in the appeal from the final decree. This implies that a revisional remedy, if availed and unsuccessful, may not necessarily extinguish the right under Section 105(1).

Principle of Res Judicata and Finality of Interlocutory Orders

While Section 105(1) provides a broad avenue for challenging interlocutory orders, it is subject to the principle of res judicata or constructive res judicata. The Supreme Court in Satyadhyan Ghosal v. Deorajin Debi^[1] clarified that an interlocutory order which had not been appealed from (if an appeal lay) but which effectively decided an issue finally between the parties could operate as res judicata, thereby precluding a re-agitation of that issue at a later stage, including under Section 105. This acts as an important limitation on the scope of challenges under Section 105(1).

Section 105(2): The Preclusion Regarding Appealable Remand Orders

Rationale and Operation of the Bar

Section 105(2) creates a specific preclusion regarding appealable orders of remand. If a party aggrieved by such an order (e.g., an order under Order XLI, Rule 23 or 23A, which is appealable under Order XLIII, Rule 1(u) CPC) does not file an appeal against it, that party is thereafter barred from disputing the correctness of the remand order. The rationale is to ensure that the question of the propriety of a remand is settled before further proceedings commence pursuant to it, thus avoiding wastage of judicial time and resources. The Supreme Court's reference in Nain Singh v. Koonwarjee And Others^[3] to a "remand order that falls under Section 105(2) of the CPC" highlights the direct applicability of this preclusion.

Distinction from Non-Appealable Remand Orders

It is crucial to distinguish between remand orders that are appealable and those that are not. If a remand order does not fall within the categories specified in Order XLIII, Rule 1(u) (e.g., a remand under the inherent powers of the court, or one under Order XLI, Rule 25 which is not strictly a remand reversing and remanding the entire case), it is not appealable. In such cases, the bar under Section 105(2) does not apply, and the correctness of such a non-appealable remand order can be challenged in an appeal from the final decree under Section 105(1), as supported by the principle in Satyadhyan Ghosal^[1] (cited in Kshitish Chandra Bose^[2]). The context of remand orders and their procedural propriety was also discussed in P. Purushottam Reddy And Another v. Pratap Steels Ltd.^[15], which dealt with the High Court's power to remand under Order XLI, Rules 23, 23-A, and 25 CPC.

Interplay with Other Provisions of the CPC

Section 104 and Order XLIII: Appealable Orders

Section 104 CPC, read with Order XLIII, Rule 1, lists various orders from which an appeal lies. Section 105(1) operates as a general rule for orders not covered by these provisions or for appealable orders (other than remand orders under S.105(2)) that were not appealed. Section 104(2) imposes a further restriction: no appeal shall lie from any order passed in appeal under Section 104. This was discussed in Shobha Dinesh Supare And Another v. Dinesh Namdeorao Supare^[16], where an appeal against an appellate order (itself passed in an appeal under S.104 r/w O.XLIII R.1) was held not maintainable due to the bar under S.104(2) and S.105.

Order XLIII Rule 1A: Specific Right to Challenge Certain Orders

Order XLIII, Rule 1A CPC, introduced by the 1976 amendment, provides a specific right to challenge certain orders (e.g., orders under Order XXXIX, Rules 1, 2, 2A, 4, or 10) in an appeal against the decree, if not appealed separately. This provision complements Section 105(1) by explicitly listing certain non-appealable findings or orders that can be disputed in an appeal from the decree.

Section 115: Revisional Jurisdiction

Section 115 CPC grants the High Court revisional jurisdiction over orders of subordinate courts in certain circumstances. Often, an interlocutory order may be amenable to revision. The existence of a remedy under Section 105(1) can be a factor in deciding whether to entertain a revision. In Mangalsingh v. Sagarmal And Others^[17], a preliminary objection was raised against a revision petition on the ground that the order could be challenged under Section 105 in an appeal from the final decree. Similarly, Ram Sarup v. Gaya Prasad^[18] discussed the maintainability of a revision when Section 105 provides an alternative remedy. The scope of revision for interlocutory orders, especially after amendments to Section 115, was considered in Bhagwanji Vishavji Thakkar v. Pravinchandra Jivanbhai Patadia & Another^[19].

Section 4: Savings Clause and Special Laws

Section 4 CPC provides that nothing in the Code shall limit or otherwise affect any special or local law, or any special jurisdiction or form of procedure. This implies that if a special law provides a specific mechanism for challenging orders, or accords finality to certain interlocutory orders, such provisions may override Section 105. This principle is evident from cases like Fazal Ali v. Amna Khatun & Others^[20] and Akbari Begam v. Rahmat Husain^[21] which discuss Section 4 CPC. The overriding effect of special enactments, such as the Commercial Courts Act, 2015, as highlighted in Laxmi Polyfab Pvt. Ltd. v. Eden Realty Ventures Pvt. Ltd. And Another^[22], could also impact the applicability of Section 105.

Conclusion

Section 105 of the Civil Procedure Code, 1908, serves as a vital tool in civil appellate practice, aiming to consolidate challenges to interlocutory orders within the appeal against the final decree. Sub-section (1) provides a general right to assail errors in interlocutory orders that affect the merits of the case, even if such orders were appealable but not appealed (except for remand orders). Sub-section (2) imposes a strict preclusion against challenging an appealable remand order if it was not appealed at the appropriate time.

Judicial interpretations have clarified the scope of "affecting the decision of the case," the interplay with appealable orders, the effect of prior revisional challenges, and the overarching principle of res judicata. The distinction between appealable and non-appealable remand orders is critical for the application of Section 105(2). While Section 105 promotes procedural economy, its application requires careful consideration of the nature of the interlocutory order, its impact on the case, and its interaction with other provisions of the CPC and any applicable special laws. Ultimately, Section 105 endeavors to ensure that justice is not subverted by uncorrected procedural errors, while simultaneously guarding against fragmented and premature appellate interventions.