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Understanding CPC Section 105: When the Appeal Process is Available
In civil litigation under the Code of Civil Procedure, 1908 (CPC), navigating the appeal process can be tricky. A common question arises: CPC Section 105 Appeal Process Shall be Available – when exactly can you challenge a court's order through appeal? Section 105 CPC governs appeals from orders, providing crucial clarity on remedies. This post breaks it down based on judicial precedents, helping litigants understand their rights without offering specific legal advice.
Disclaimer: This is general information based on case law. Legal outcomes depend on facts; consult a qualified lawyer for personalized guidance.
What Does Section 105 CPC Say?
Section 105 CPC, titled Other Orders, states:
(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, is open as grounds of objection in such appeal. 2015 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 28.08.2020 CORAM THE HON'BLE MR.JUSTICE S.S.SUNDAR C.R.P.(NPD)(MD)No.1697
Key Principle: Standalone appeals from most orders are barred. However, if a decree is appealed (under Section 96 CPC), you can challenge interlocutory orders affecting the decree's decision. This promotes efficiency while preserving justice. Bhanu Kumar Jain VS Archana Kumar - 2005 1 Supreme 102
Sub-section (2): The Preclusion Rule
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. 2015 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 28.08.2020 CORAM THE HON'BLE MR.JUSTICE S.S.SUNDAR C.R.P.(NPD)(MD)No.1697
If an appealable remand order exists and you don't challenge it separately, you're barred from raising it later—even in a decree appeal. This prevents piecemeal litigation. Mootha Ramakoti VS Theatare Swapna Rep. by its Managing Partner - 2024 Supreme(AP) 1268
When is the Appeal Process Available Under Section 105?
The appeal process under Section 105 is not direct but embedded in decree appeals. Here's how it works:
No Independent Appeal from Non-Appealable Orders: Orders not listed in Order 43 Rule 1 CPC or Section 104 can't be appealed alone. Examples include many interim orders (e.g., under Order 39 for injunctions). HANUMAN DATT VS STATE OF M. P. - 2002 Supreme(MP) 947
Challenge in Decree Appeal: File under Section 96 CPC. Raise errors in prior orders if they affect the decision. The appellate court reviews the entire record. BHAGWANJI AND KALYANJI VS PUNJABHAI HAJABHAI RATHOD - 2006 Supreme(Guj) 608
Example: Rejecting a document during trial? Challenge in the first appeal against the decree, not separately. BHAGWANJI & KALYANJI vs PUNJABHAI HAJABHAI RATHOD
Expressly Appealable Orders: Section 105 doesn't override Order 43 (e.g., rejecting Order 9 Rule 13 applications for setting aside ex-parte decrees). Appeal those directly under Order 43 Rule 1(d). If dismissed, no further appeal in some cases. Bhanu Kumar Jain VS Archana Kumar - 2005 1 Supreme 102 Mootha Ramakoti VS Theatare Swapna Rep. by its Managing Partner - 2024 Supreme(AP) 1268
Landmark Supreme Court Insights
The Supreme Court has clarified Section 105 in key rulings:
Ex-Parte Decree Scenarios (Bhanu Kumar Jain VS Archana Kumar - 2005 1 Supreme 102): If an Order 9 Rule 13 application (to set aside ex-parte decree) is dismissed, appeal under Order 43 Rule 1(d). You can't re-agitate it in the main Section 96 appeal, but argue merits afresh.
When an application under Order 9, Rule 13... is dismissed, the defendant can only avail a remedy... to prefer an appeal in terms of Order 43, Rule 1... Once such an appeal is dismissed, the Appellant cannot raise the same contention in the First Appeal.
Remand Orders (Metal Industries (Ltd.) Shornur and Another v. Geetha Parangath and Another - 2013 Supreme(Online)(Ker) 36277): Appellate courts can remand under CPC powers (Sections 105, 9), e.g., for property identification via commissioner. No separate appeal if not expressly provided.
No Second Appeals from Certain Orders (Om Prakash vs Shanti Devi - 2024 Supreme(Online)(HP) 10163): Revisions under Section 115 aren't maintainable against Section 96 orders; use Section 100 for second appeals.
Commercial Disputes (Odeon Builders Pvt. Ltd. vs NBCC (India) Ltd.): Appeals limited to enumerated orders under Commercial Courts Act Section 13, aligning with Section 105's restrictive approach.
Practical Scenarios: Appeal Availability
| Scenario | Appeal Available? | Remedy |
|----------|-------------------|--------|
| Interlocutory order (e.g., evidence rejection) affecting decree | Yes, in Section 96 appeal | Argue under Section 105(1) BHAGWANJI AND KALYANJI VS PUNJABHAI HAJABHAI RATHOD - 2006 Supreme(Guj) 608 |
| Dismissal of Order 9 R.13 application | Yes, under Order 43 R.1(d) | Direct appeal; no re-litigation in decree appeal Shyam Sundar Agarwal and Co VS State of Assam and others - 1974 Supreme(Gau) 27 |
| Remand order (appealable) | Yes, separately | Or precluded later (Section 105(2)) 2015 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 28.08.2020 CORAM THE HON'BLE MR.JUSTICE S.S.SUNDAR C.R.P.(NPD)(MD)No.1697 |
| Non-enumerated interim order | No standalone | Challenge in decree appeal HANUMAN DATT VS STATE OF M. P. - 2002 Supreme(MP) 947 |
| Ex-parte decree set-aside order | No (if allowing application) | Specific CPC bar Mootha Ramakoti VS Theatare Swapna Rep. by its Managing Partner - 2024 Supreme(AP) 1268 |
Pro Tip: Time limits are strict. Section 105 doesn't condone delays; act promptly.
Limitations and Exceptions
Res Judicata & Estoppel: Principles apply across proceedings. Once decided, don't re-agitate. Bhanu Kumar Jain VS Archana Kumar - 2005 1 Supreme 102
Inherent Powers (Section 151): Not a substitute where appeals lie. E.g., can't use for restoring dismissed Order 9 R.13 if Order 43 appeal available. Shyam Sundar Agarwal and Co VS State of Assam and others - 1974 Supreme(Gau) 27
High Court Revisions (Section 115): Possible for non-appealable orders in the course of a suit, but not final appellate orders under Section 104/Order 43. HANUMAN DATT VS STATE OF M. P. - 2002 Supreme(MP) 947
Patents & Special Acts: Section 105 interacts with statutes like Patents Act Section 104, limiting inferior court jurisdiction. BRISTOL MYERS SQUIBB HOLDINGS IRELAND AND ORS vs NATCO PHARMA-342_2019)
Strategic Tips for Litigants
- Document Everything: Build a record for decree appeals.
- Choose Remedies Wisely: Simultaneous Order 9 R.13 and Section 96 appeals possible, but merger rules apply. Bhanu Kumar Jain VS Archana Kumar - 2005 1 Supreme 102
- Avoid Multiplicity: Section 105 prevents abuse; focus on merits.
- Seek Expert Help: Appellate courts scrutinize affecting the decision strictly.
Key Takeaways
- CPC Section 105 appeal process is available primarily through decree appeals (Section 96), not standalone for most orders.
- Challenge errors affecting the case in first appeals; respect preclusion for remand orders.
- Follow Order 43 for specified appeals; no second bites via Section 151.
- Supreme Court emphasizes efficiency: No endless challenges. Bhanu Kumar Jain VS Archana Kumar - 2005 1 Supreme 102 Mootha Ramakoti VS Theatare Swapna Rep. by its Managing Partner - 2024 Supreme(AP) 1268
Understanding Section 105 ensures you don't miss remedies or waste time on non-starters. For tailored advice, engage a civil lawyer early.
Sources: Insights drawn from Supreme Court and High Court judgments including Bhanu Kumar Jain VS Archana Kumar - 2005 1 Supreme 102, Mootha Ramakoti VS Theatare Swapna Rep. by its Managing Partner - 2024 Supreme(AP) 1268, 2015 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 28.08.2020 CORAM THE HON'BLE MR.JUSTICE S.S.SUNDAR C.R.P.(NPD)(MD)No.1697, BHAGWANJI AND KALYANJI VS PUNJABHAI HAJABHAI RATHOD - 2006 Supreme(Guj) 608, Om Prakash vs Shanti Devi - 2024 Supreme(Online)(HP) 10163, HANUMAN DATT VS STATE OF M. P. - 2002 Supreme(MP) 947, Metal Industries (Ltd.) Shornur and Another v. Geetha Parangath and Another - 2013 Supreme(Online)(Ker) 36277, Shyam Sundar Agarwal and Co VS State of Assam and others - 1974 Supreme(Gau) 27, Odeon Builders Pvt. Ltd. vs NBCC (India) Ltd., BHAGWANJI & KALYANJI vs PUNJABHAI HAJABHAI RATHOD, [BRISTOL MYERS SQUIBB HOLDINGS IRELAND AND ORS vs NATCO PHARMA).
Search Results for "CPC Section 105: When Appeal Process is Available"
1994 0 Supreme(SC) 697 • India - Supreme Court
M. N. VENKATACHALIAH, S. MOHAN, M. M. PUNCHHI
was tender process was in two stages. ... Criminal Procedure Code - Section 482 - Quashing the FIR – Employment and Service - No evidence or comes ... could have been validly urged had it been heard - Then court do not know what decision could have been arrived - Supreme court in appeal ... The right to refuse the lowest or any other tender is always available to the government. ... , by the application of permissible parameters to set right the decision-making #HL_S....
1985 0 Supreme(SC) 229 • India - Supreme Court
D. P. MADAN, M. P. THAKKAR, R. S. PATHAK, V. D. TULZAPURKAR, Y. V. CHANDRACHUD
(2) WITHOUT FORMAL PROCEEDINGS - LARGE SCALE BREAKDOWN OF DISCIPLINE—HOLDING OF FORMAL ENQUIrY UNDER ARTICLE 311(2) NOT POSSIBLE—DISPENSED ... WITH - APPELLANT, ONE OF MEMBERS OF BOMBAY CITY POLICE FORCE INDULdGED IN AN INSTIGATED INSUBORDINATION AND INDISCIPLINE, WITHDRAWING ... Livelihood is a matter of concern to the individual and his family as also a matter of public interest and in appropriate case public ... The process of a fair hearing need ....
1992 0 Supreme(SC) 581 • India - Supreme Court
K.JAYACHANDRA REDDY, S.R.PANDIAN
or consequence - So far as the rest of the alleged illegalities are concerned, we straightway say that those grounds are not available ... , 91, 93, 94, 105 , 156(3), 157, 159, 167 (2), 190, 202, 164, 306 397/482 – Cheating and dishonesty - Demand for confirmation - ... align="justify">Constitution of India,1950 - Articles 21, 51 -A , 77 , 73 , 118 , 32 , 226 and 300-A - Indian Penal Code,1860 - Sections ... Section 482 which corresponds to S. 561 A of the old Code and to S. 151 #HL_ST....
1988 0 Supreme(SC) 337 • India - Supreme Court
B.C.RAY, G.L.OZA, M.N.VENKATACHALIAH, RANGANATH MISRA, S.NATARAJAN, S.RANGANATHAN, SABYASACHI MUKHARJEE
a right of first appeal. ... of appeal to the Supreme Court under section 374 of the Cr. ... exercise of the powers under article 142 or under section 407 available to it as an appellate court. ... Section 374 of the Code undoubtedly gives a right of appeal. ... the process of court, that it....
2005 7 Supreme 610 • India - Supreme Court
R. C. LAHOTI, B. N. AGARWAL, ARUN KUMAR, G. P. MATHUR, A. K. MATHUR, P. K. BALASUBRAMANYAN, C. K. THAKKER
course, a right of appeal is available to them under Section 37 of the Act even at an earlier stage. ... The party aggrieved by any order of the arbitral tribunal, unless has a right of appeal under Section 37 of the Act, has to wait ... A remedy available to the party aggrieved is to challenge the award in accordance with Section 34 or #HL_STA....
2011 Supreme(Online)(KER) 38695 • India - High Court of Kerala
THOMAS P.JOSEPH, J
of proof is on the plaintiff and confirmed that the order is subject to challenge during the appeal process as per Code provisions ... Dispute - Property Declaration - Code of Civil Procedure Section 105 - The court upheld the lower court's ruling that the burden ... Finding of the Court: The court found that....
2025 Supreme(Online)(Ker) 43871 • India - IN THE HIGH COURT OF KERALA AT ERNAKULAM
P. Krishna Kumar, J
The court closed the original petition while reserving the petitioner's rights for appeal. ... The petitioner failed to raise timely challenges before trial, thus placing the remedy under Section 105 for future grievances. ... This petition challenges an order dismissing an application to remit a commission report under the Civil Procedure Code. ... suit goes against him and he d....
• India - Gauhati
KALYAN RAI SURANA, J
... ... Issues: The legality of the review process concerning the admissibility of documents and jurisdictional errors in trial court ... (A) Constitution of India - Article 227 - Review of orders - A review petition is not an appeal; the Court cannot change its decision ... (Paragraphs 10, 16, 25) ... ... Facts of the case: ... The petitioner contested #HL_....
• India - Delhi High Court
VIPIN SANGHI, JASMEET SINGH
the enabling nature of Section 13(1A) from limiting provisions, emphasizing that the right to appeal should not be unduly restricted ... is critical for appeal rights in commercial matters. ... ... ... Findings of Court: ... Appeals deemed not maintainable; none of the orders were appealable under the provisions of the CPC ....
1966 0 Supreme(All) 69 • India - Allahabad
GANGESHWAR PRASAD, BISHAMBHAR DAYAL
the relevant provisions of the Payment of Wages Act, the appeal process, and the authority's power to condone delay in filing an ... the prescribed period, and whether it can be raised in an appeal against a direction under section 15 (3). ... period can be challenged in an appeal against the final direction under se....
2024 0 Supreme(AP) 1268 • India - Andhra Pradesh
RAVI NATH TILHARI, NYAPATHY VIJAY
(2) No appeal shall lie from any order passed in appeal under this section. 6. Order 43 Rule 1 CPC reads as under:1. ... (Vide Section 105, Civil Procedure Code). An order made under action 151 is not included in the category of appealable orders.” 12. We are of the view that the appeal under Order 43 Rule 1 CPC against the order dated 16.07.2007 is not maintainable. ... Section 104 CPC#....
2002 0 Supreme(MP) 947 • India - Madhya Pradesh
S.P.KHARE
Section 105 (1) provides that "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, ... But he cannot assail an order passed in appeal under Section 104 or Order 43 Rule 1 CPC in the appeal against the decree passed in the suit. ... Ther....
2024 Supreme(Online)(HP) 10163 • India - IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
AJAY MOHAN GOEL
, has to be assailed under Section 100 of the Code of Civil Procedure and a Regular Second Appeal is maintainable against an Order passed in appeal. ... By the process of interpretation, such remedies can neither be restricted nor expanded.35. When Section 96 . ... (c) A second appeal under Section 100 . CPC is maintainable against an order passed in an appeal, arising out of order passed under Rule 58(3) or Rule....
2020 0 Supreme(Del) 154 • India - Delhi
RAJIV SAHAI ENDLAW
However our Legislature, while enacting Section 105, was / is deemed to be conscious of the statutory power to grant declaratory relief available under Section 34 of the Specific Relief Act, 1963. ... Section 104 of the Patents Act provides that a suit for declaration under Section 105 or for a relief under Section 106 or for infringement of a patent shall not be instituted in any court inferior to a District Court. ... Per sub-#HL_....
• India - Delhi High Court
However our Legislature, while enacting Section 105, was / is deemed to be conscious of the statutory power to grant declaratory relief available under Section 34 of the Specific Relief Act, 1963. ... Section 104 of the Patents Act provides that a suit for declaration under Section 105 or for a relief under Section 106 or for infringement of a patent shall not be instituted in any court inferior to a District Court ... Persu....
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