Litigants Can Challenge Non-Appealable Interlocutory Orders In Final Appeal Under Section 105 CPC: Supreme Court

"To hold that such an order has assumed irrevocable finality would be to defeat the very purpose of Section 105, CPC and to confer upon a non-appealable interlocutory order a status which the legislature has consciously chosen not to accord, " Supreme Court of India, in a significant ruling, held that a party's failure to immediately challenge an interlocutory order does not preclude them from questioning its correctness during an appeal against the final decree.

A bench of Justice Dipankar Datta and Justice Augustine George Masih observed that under Section 105(1) of the Code of Civil Procedure (CPC), errors in non-appealable interlocutory orders can rightfully be raised as grounds of objection in the final appeal.

The original plaintiff, Parvatewwa, instituted a second suit (Suit-II) for declaration of title and possession while her appeal regarding an earlier injunction suit (Suit-I) was still pending. During Suit-II, the defendant filed an interlocutory application (I.A. No. 4) seeking dismissal under Order II Rule 2 of the CPC, which the Trial Court rejected. While the suit was ultimately dismissed on merits by the lower courts, the High Court reversed the decision in a second appeal, erroneously relying on the premise that the rejection of the interlocutory application had attained finality since it was never independently challenged.

The primary question before the court was whether the failure to independently challenge the dismissal of an interlocutory application bars a defendant from re-agitating the underlying legal issue in an appeal against the final decree. The court was also called upon to determine the precise scope and legislative intent of Section 105(1) of the CPC regarding non-appealable interlocutory orders.

No Obligation To Challenge Every Interlocutory Order

The Supreme Court firmly rejected the High Court's reasoning that the unappealed interlocutory order had attained binding finality. The bench clarified that the legislative scheme of the CPC does not force a litigant to appeal every interim order immediately. Discarding the notion that a suitor forfeits their right by waiting, the court noted that "the legislative scheme does not oblige a party to challenge each and every interlocutory order at the stage at which it is made."

Scope Of Section 105(1) CPC Explained

Examining Section 105(1) of the CPC, the bench emphasized that unless the statute provides a specific mechanism for an independent appeal, interlocutory orders are subsumed into the final decree. The court noted that the rejection of an application under Order II Rule 2 is not independently appealable under Section 104 read with Order XLIII of the CPC. Therefore, any defect in such an order affecting the case's decision may be raised in the memorandum of appeal against the final decree.

Preventing Endless Harassment Of Suitors

Relying on historical precedents from the Privy Council, the bench observed that compelling parties to appeal every interlocutory decision would cause endless expense and delay. The court reiterated that interlocutory orders designed to ensure the smooth disposal of a suit do not decide the substantive controversy. Because they do not determine substantive rights, the bench held that "they do not impinge upon the legal rights of parties to the litigation."

Express Exceptions Under The Code

The court closely examined the opening words of Section 105(1) CPC, which state, "Save as otherwise expressly provided." The bench highlighted that this phrase is of determinative significance. It carves out exceptions, mandating that if the CPC expressly provides a specific mechanism of challenge to certain orders, they must be assailed in that prescribed manner, failing which the right to question them stands foreclosed.

"The legislative scheme does not oblige a party to challenge each and every interlocutory order at the stage at which it is made. Unless a statute expressly mandates otherwise, such orders may be questioned in an appeal against the final decree."

No Irrevocable Finality For Non-Appealable Orders Applying these statutory principles to the facts, the court concluded that the Trial Court's dismissal of the Order II Rule 2 application did not amount to a final adjudication of rights. The bench held that treating such an order as having irrevocable finality would defeat the very purpose of Section 105 of the CPC. Consequently, it remained entirely open for the defendants to urge before the Appellate Court that the suit was barred, notwithstanding the earlier rejection of their application.

The Supreme Court allowed the appeal, set aside the impugned judgment of the High Court, and dismissed the subsequent suit. The ruling solidifies the procedural safeguard under Section 105(1) of the CPC, ensuring that litigants are not penalised for deferring challenges to non-appealable interlocutory orders until the final appellate stage.

Date of Decision: 09 April 2026