What are Interlocutory Orders? Are they Appealable in India?

Interlocutory orders are orders passed by a court during the pendency of a suit, which do not determine the substantive rights of the parties in respect of the subject-matter of the suit or terminate the suit, but relate to the protection or otherwise of the subject-matter of the suit.

They are also passed in the course of execution proceedings after the judgment has been obtained. In short they relate to the matters of procedure as they arise either during the trial of the suit or in the course of execution proceedings.

They are passed to assist the parties in the prosecution of their case, or for the purpose of protecting the subject-matter of the suit, or for ensuring the determination of the merits of the case.

Rules 6 to 10 of Order 39 mention certain interlocutory orders. The court has the power to order interim sale of movable property, which is the subject-matter of the suit or is attached before judgment in such suit, which is subject to speedy and natural decay.

It can order the detention, preservation or inspection of any property which is the subject-matter of such suit. Similarly, when the land in suit is liable to Government revenue or is tenure liable to sale and the party in possession neglects to pay the revenue or rent, the court may order any other party to the suit in case of sale of the land to be put in immediate possession of the property.

Where the subject-matter of the suit is money or some other thing capable of delivery, and any party thereto admits that he holds such money or thing as a trustee for another party or that it belongs or is due to another party, the court may order the same to be deposited in court, or delivered to such last named party. Orders directing the appointment of a receiver also fall within the meaning of interlocutory orders.

As a general rule of law on appeal lies against an interlocutory order. But there are interlocutory orders which can be challenged in an appeal against the final decree. They are of such a nature as would or might have induced the court to alter its decision: for instance an order refusing to admit a document which is in law admissible, or to examine a witness, or to issue a commission, or to do some such act which is calculated ultimately to influence the decision of the court on the merits.

Then there are interlocutory orders against which no appeal has been provided for, and even they can be challenged in an appeal from the decree in the manner set forth in Section 105 of the Code of Civil Procedure. That section reads:

“105. 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.”

The first part of the sub-section postulates that no appeal shall lay form any order unless such right is expressly provided by the Code. It is provided in Section 104 and Order 43, R. 1 (already discussed in answer to question No. 6).

The second part of the sub-section provides that if a party does not appeal from an interlocutory order either because no appeal is permissible or because the party does not elect to file an appeal where it is permissible, the party may wait until the whole cause has been decided and make objections against the interlocutory order in the memorandum of appeal filed against the decree in the suit in which the interlocutory order was made, if the error, defect or irregularity in making the same effects the decision of the case on the merits.

The error, defect or irregularly within the meaning of Section 105 must mean an error, defect or irregularity in procedure in law and not in matter of fact.

In case of execution proceeding also every order passed by an execution court in the course of a proceeding under Section 47 does not necessarily amount to a decree so as to be appealable.

In order to amount to a decree the order must be the formal expression of an adjudication which so far as regards the court expressing it conclusively determines the rights of the parties with regard to the matters in controversy.

Interlocutory orders in execution proceedings which merely express the opinion of the court without finally determining the rights of the parties are not, therefore, appealable.

No revision lies against interlocutory orders which are appealable. As regards non-appealable orders the question arises whether they come within the terms of Section 115.

The words used in the section are “case decided” and there is a conflict of judicial opinion with regard to the meaning of this expression. The High Courts of Allahabad and Lahore have held that the world “case” does not include an issue or part of a case and, according to them; the High Court cannot interfere in revision in interlocutory orders.

The Calcutta High Court, however, has taken the opposite view. According to it, the word “case” is wide enough to include an interlocutory order and as such according to that Court, the High Court can interfere in revision in respect of non-appealable interlocutory orders.

The controversy has, however, been set at rest by the authoritative decision of the Supreme Court to the effect that the expression ‘case’ includes a part of a proceeding and that an interlocutory order holding that the plaintiffs suit for the recovery of money advanced to the defendant was not maintainable must be regarded as a “case which has been decided.” [S.S. Khanna v. F.J. Dillon, 1973 A.L.J., 1068],

The High Court shall not, however, under Section 115, vary or reverse any order made, or any order deciding an issue, in the cause of a suit or other proceeding, except where the order if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings. (S. 115: Proviso).

A revision shall not operate as a stay of suit or other proceeding before the court except where such suit or other proceeding is stayed by the High Court. [S. 115 (3)].