Applicability of Res Judicata on IA Orders (at Different Stages of the Same Suit) 

Jojy George Koduvath

Abstract

  • The principles of res judicata apply to Orders on Interlocutory Applications.
  • A stay, injunction, or receiver order does not operate as res judicata when the case is taken up for final judgment. But Orders as to the issuance of commissions, amendment of pleadings, impleadment of parties, condonation of delay, etc., operate as res judicata.
  • Once an Order is passed in a suit, it stands as res judicata at its subsequent stages, that is, in appeal, revision, etc.
  • As per Section 105 CPC, adverse IA Orders (such as issuance of commissions, amendment of pleadings, impleadment, condonation of delay) can be challenged in an appeal from the (final) decree.
  • The Revision Order in the IA can also be challenged before the Appellate Court when an appeal is taken against the decree in that case. (Channappa v. Parvatewwa, 2026 INSC 343).
  • If an appeal is provided from the IA Order and a pronouncement has come from the appeal court, the decision on the specific issue (directly and substantially in issue) definitely stands as res judicata.
  • If an earlier finding is liable to be varied based on evidence adduced at trial, it will not operate as res judicata. (E.g., granting leave under Sections 91 or 92 CPC, permitting publication under Order I Rule 8).

IA Orders are Conclusive Determination of the Issue Raised

In Satyadhyan Ghosal v. Deorajin Debi, AIR 1960 SC 941, it was observed as under:

  • “The principle of res judicata applies also as between two stages in the same litigation to this extent that a court, whether the Trial Court or a Higher Court having at an earlier stage decided a matter in one way will not allow the parties to re-agitate the matter again at a subsequent stage of the same proceedings.” (Quoted in: Barkat Ali v. Badri Narain, AIR 2008 SC 1272; 2008-4 SCC 615.)

In Hope Plantations Ltd. v. Taluk Land Board, Peermade, 1999 (5) SCC 590, it was held that if an issue has been decided at an earlier stage against a party, it cannot be allowed to be re-agitated by him at a subsequent stage in the same suit or proceedings. (Referred to in: C. V. Rajendran v. N. M. Muhammed Kunhi, AIR 2003 SC 649; 2002-7 SCC 447).

In Madhya Pradesh Madhya Kshetra Vidyut Vitran Co. Ltd. v. Bapuna Alcobrew Private Ltd., 2024 INSC 829; 2024 KLT(Online) 2638; 2024-6 KLT(SN) 23, it is held as under:

  • “To recount, the order of the High Court dated 14th February, 2001, though interim in the sense that it disposed of an interlocutory application, was a conclusive determination of the issue raised by the first respondent itself and which went against it.”
Read Also:
•    Res Judicata and Constructive Res Judicata
•   Res Judicata and Judicial Precedent
•    What is Binding Judicial Precedent – In a Nutshell
•    No Res Judicata on Finding on Title in an Injunction Suit
•    Res Judicata: ‘Same issue’ must have been ‘Adjudicated’
•    Res Judicata and Appeal: No Res Judicata on Adverse Findings
•    Order II, Rule 2 CPC – Not to Vex Defendants Twice
•    A Landmark Decision on Order II rule 2, CPC – Cuddalore Powergen Corpn .
•    Termination of Tenancy (& Grant) by Forfeiture (for Claiming Title)
•    SUIT on TITLE: Landlord can Recover Property on GENERAL TITLE
•   Recovery of Possession Based on Title and on Earlier Possession
•   Recovery of Possession (Based on Title) and Eviction (of Tenants)
•    Channappa v. Parvatewwa, 2026 INSC 343: Suit Dismissed for Order II Rule 2 Bar: For No ‘Consequential Declaration’ on Title, in the Earlier Suit 

Interlocutory Orders – Various kinds; No Res Judicata on Certain Orders

Interlocutory orders are of various kinds.

  • No res judicata: Orders of stay, injunction, or appointment of a receiver do not operate as res judicata when the case is taken up for final judgment, as they are intended merely to preserve the status quo.
  • Operate as res judicata: However, orders relating to the issuance of commissions, amendment of pleadings, impleadment of parties, condonation of delay, etc., stand on a different footing.

If an earlier finding is liable to be varied on the basis of evidence adduced at trial, it will not operate as res judicata. For example, findings rendered while granting leave under Sections 91 or 92 of the Code of Civil Procedure, 1908, or while permitting publication under Order I Rule 8, are not final determinations and do not attract res judicata.

In Arjun Singh v. Mohindra Kumar: AIR 1964 SC 993, the Apex Court has held as follows:

  • “It is needless to point out that interlocutory orders are of various kinds; some like orders of stay, injunction or receiver are designed to preserve the status quo pending the litigation and to ensure that the parties might not be prejudiced by the normal delay which the proceeding before the court usually take. They do not in that sense decide in any manner the merits of the controversy in issue in the suit and do not, of course, put an end to it even in part. Such orders are certainly capable of being altered or varied by subsequent applications for the same relief, though normally only on proof of new facts or new situations which subsequently emerge. As they do not impinge upon the legal rights of parties to the litigation the principle of res judicata does not apply to the findings on which these orders are based, though if applications were made for relief on the same basis after the same has once been disposed of the Court would be justified in rejecting the same as an abuse of the process of Court”.
  • (Quoted in: Shalini Agarwal v. Shandar Industries Private Ltd., AIR2021 (Uchal) 26;
  • Kalapala Narendra Babu v. Kalapala Chennakrishniah, 2020-3 ALD 197; 2020-6 ALT 25;
  • A. Sengoda Gounder v. P. Malliga, 2019-5 CTC 541;
  • Saibinnisha v. Abdul Vahab, 2018-3 ILR(Ker) 716; 2018-3 KHC 818; 2018-3 KLT 449;
  • Sunshine India Pvt. Ltd. v. Bhai Manjit Singh, 2013-8 AD 189; 2014 2013-202 DLT 777; 2013-138 DRJ 223; 2014-7 RCR (Civ) 8084 (Del);
  • N. Narayana v. Ramesh Kumar, ILR 2010 (Kar) 2446; 2010-2 KCCR 1464).

IA Orders can be Challenged in Appeal from Decree under S. 105 CPC

However, Interlocutory Orders (such as issuance of commissions, amendment of pleadings, impleadment, condonation of delay) are open for adjudication by an appellate authority in an appeal against the final judgment. (Prahlad Singh v. Col. Sukhdev Singh, AIR 1987 SC 1145; 1987-1 SCC 727). It is not necessary that an interlocutory order must be challenged immediately by an appeal. It can be challenged when an appeal is filed against the final decree. The proposition – principles of res judicata apply to IA Orders (at different stages of the same suit) – is subject to Section 105 CPC.

Section 105 CPC provides that when an appeal is filed against the decree in a suit, any error, defect or irregularity in an Order can be raised as a ground in the memorandum of appeal. It applies to IA Orders which had not been appealed from, either because no appeal lay or even though an appeal lay, an appeal was not taken. The dismissal of the Revision application, against the Order on IA, also makes no difference.

Section 105 reads as under:

  • ‘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 made after the commencement of this Code from which an appeal lies does not appeal therefrom, he shall thereafter be precluded from disputing its correctness.’

It was explained by Das Gupta, J. in Satyadhan Ghosal v. Smt Deorajin Debi, AIR 1960 SC 941, (1960) 3 SCR 590, as under:

  • Does this, however, mean that because an earlier stage of the litigation a court had decided an interlocutory matter in one way and no appeal has been taken therefrom or no appeal did lie, a higher court cannot at a later stage of the same litigation consider the matter again? …
    • It is clear, therefore, that an interlocutory order
    • which had not been appealed from, either because no appeal lay or even though an appeal lay, an appeal was not taken.
    • could be challenged in an appeal from the final decree or order.’ (Quoted in: Arjun Singh v. Mohindra Kumar AIR 1964 SC 993; Channappa v.  Parvatewwa, 2026 INSC 343).

Whether an appeal would lie or not from an Order on an IA is determined under Section 104 read with Order 43, CPC.

Effect of Earlier Appeal from the IA Order

Where an appeal lies from an interlocutory order, and the appellate court finally adjudicates an issue directly and substantially in issue, such a determination operates as res judicata in a subsequent appeal from the decree.

Order of Remand is an Interlocutory in Characterv

In Satyadhyan Ghosal v. Sm. Deorajin Debi, AIR 1960 SC 941, (1960) 3 SCR 590, it was held as under:

  • “In our opinion, the order of remand was an interlocutory judgment which did not terminate the proceedings and so the correctness thereof can be challenged in an appeal from the final order.” 
  • (Referred to in: Mangal Prasad Tamoli v.Narvedshwar Mishra, AIR 2005 SC 1964; 2005-3 SCC 422;
  • C. V. Rajendran v. N. M. Muhammed Kunhi, AIR 2003 SC 649; 2002-7 SCC 447;
  • Lonankutty v. Thomman, AIR 1976 SC 1645; 1976-3 SCC 528;
  • Management of The Northern Railway Co Operative Credit Society Ltd., Jodhpur v. Industrial Tribunal, Rajasthan, AIR 1967 SC 1182; 1967-2 SCR 476)

Revision Order Passed by the High Court will Not Operate as Res Judicata

Under Section 115 of the Code of Civil Procedure, 1908, the High Court may call for the record of any case and make such order as it thinks fit where the subordinate court has (i) exercised a jurisdiction not vested in it by law, (ii) failed to exercise a jurisdiction so vested, or (iii) acted in the exercise of its jurisdiction illegally or with material irregularity. Revisional jurisdiction is thus confined to jurisdictional errors, illegality, and material irregularity, and does not extend to a full reconsideration of the merits as in an appeal. Consequently, a decision rendered in a revision against an interlocutory order (such as an order on an interlocutory application) will not, in principle, operate as res judicata at the stage of final adjudication.

Therefore, by virtue of Section 105 of the CPC, the order on the interlocutory application, even as modified in revision, remains open to challenge before the appellate court in an appeal against the final decree. (See: Channappa v.  Parvatewwa, 2026 INSC 343)

“Save as otherwise expressly provided”

It is interesting to note that no statute in India bars an appellant from questioning IA Orders when he files an appeal against the decree (provided it was not appealed earlier and a pronouncement had been invited, as stated in Section 105, CPC).

In Maharaja Moheshur Singh v. Bengal Government, (1859) 7 Moore’s Indian Appeals 283, the Privy Council said it as under:

  • “We are not aware of any law or regulation prevailing in India which renders it imperative upon the suitor to appeal from every interlocutory order by which he may conceive himself aggrieved, under the penalty, if he does not so do, of forfeiting forever the benefit of the consideration of the appellate court. No authority or precedent has been cited in support of such a proposition, and we cannot conceive that anything would be more detrimental to the expeditious administration of justice than the establishment of a rule which would impose upon the suitor the necessity of so appealing; whereby on the one hand he might be harassed with endless expense and delay, and on the other inflict upon his opponent similar calamities.” (Quoted in: Channappa v.  Parvatewwa, 2026 INSC 343)

Arjun Singh v.Mohindra Kumar AIR 1964 SC 993

In Arjun Singh v. Mohindra Kumar AIR 1964 SC 993, it is held that the proposition – Applicability of Res Judicata on IA Orders (at Different Stages of the Same Suit) – is subject to Sec. 105. The Apex Court held as under:

  • “If an application made under the provisions of that rule is dismissed and an appeal were filed against the decree in the suit in which such application were made, there can be no doubt that the propriety of the order rejecting the reopening of the proceeding and the refusal to relegate the party to an earlier stage might be canvassed in the appeal and dealt with by the appellate court. In that sense, the refusal of the court to permit the defendant to ‘set the clock back’ does not attain finality. But what we are concerned with is slightly different and that is whether the same Court is finally bound by that order at later stages so as to preclude its being reconsidered. Even if the rule of res judicata does not apply, it would not follow that on every subsequent day which the suit stands adjourned for further hearing, the petition could be repeated, and fresh orders sought on the basis of identical facts.” (Quoted in: Channappa v.  Parvatewwa, 2026 INSC 343)

Channappa v.  Parvatewwa, 2026 INSC 343

Effect of dismissal of I.A. No. 4 questioning the maintainability of the suit under Order II Rule 2, CPC  was came for consideration in Channappa v.  Parvatewwa, 2026 INSC 343.

It was argued in I.A. No. 4 that the cause of action in both suits was the same.  In the petition, the maintainability of the second suit was questioned. It was prayed that the suit was liable to be dismissed. The trial court found that the cause of action in both suits was different. The revision petition preferred against the same before the High Court was also dismissed. Hence, it was contended that the Order has attained finality and cannot be re-agitated. This submission was not accepted.

After quoting Arjun Singh v. Mohindra Kumar (supra), it is observed in Channappa v.  Parvatewwa – notwithstanding the earlier rejection of the application raising the plea on Order II Rule 2 CPC, it is open to the defendants to urge before the Appellate Court that the suit was barred under Order II Rule 2 CPC. Thereafter, it is held as under:

  • “Therefore, the contention that the dismissal of the application would operate as a bar to re-agitate the issue is misconceived.”

Notwithstanding the earlier rejection of the application raising the plea on Order II Rule 2 CPC, it is held in this decision that it is open to the defendants to urge before the Appellate Court that the suit was barred under Order II Rule 2 CPC. Thereafter, it is held by our Apex Court as under:

  • “Therefore, the contention that the dismissal of the application would operate as a bar to re-agitate the issue is misconceived.”

How to Subscribe ‘IndianLawLive’? Click here – “How to Subscribe free 

Read in this Cluster (Click on the Topic)

Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Principles and Procedure

PROPERTY LAW

Title, ownership and Possession

Recovery of Possession: 

Adverse Possession

Land LawsTransfer of Property Act

Land Reform Laws

Power of attorney

Evidence Act – General

Sec. 65B

Admission, Relevancy and Proof

Law on Documents

Documents – Proof and Presumption

Interpretation

Contract Act

Law on Damages

Easement

Stamp Act & Registration

Divorce/Marriage

Negotiable Instruments Act

Criminal

Arbitration

Will

Book No. 2: A Handbook on Constitutional Issues

Religious issues

Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India

Leave a Comment