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

Jojy George Koduvath

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

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 Rivision 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, (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.

“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.

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

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.”