Section 105 — Other orders
The companion to § 104. As a rule, no separate appeal lies from an order made in a court’s original or appellate jurisdiction — but when the decree is appealed, any error in such an order that affected the decision rides up with it, to be argued as a ground of objection. One exception bites the other way (2): a party who could appeal an order of remand and does not is later precluded from disputing it.
How to read Section 105
No separate appeal (1)
Save where a law expressly allows it, no appeal lies from an order made by a court in its original or appellate jurisdiction.
But raise it in the decree appeal (1)
Where the decree is appealed, an error, defect or irregularity in any order affecting the decision may be set forth as a ground of objection in the memorandum of appeal — the order merges into the decree appeal.
Remand: appeal now or never (2)
A party aggrieved by an appealable order of remand who does not appeal it is thereafter precluded from disputing its correctness.
The bare Act
(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.→ Complements § 104: an order not on § 104’s list is not lost — its error rides up in the appeal from the decree.
(2) Notwithstanding anything contained in sub-section (1), where any party aggrieved by an order of remand 1* * * from which an appeal lies does not appeal therefrom, he shall thereafter be precluded from disputing its correctness.
1. The words “made after the commencement of this Code” were omitted by Act 104 of 1976, s. 42 (w.e.f. 1-2-1977). An order of remand is itself appealable under Order XLIII, r. 1(u).
Key terms decoded
An order (not a decree) made while the court tries a suit (original) or hears an appeal (appellate). As a rule it carries no separate appeal.
Unless a provision (e.g. § 104 / Order XLIII) expressly allows an appeal from that order. Those listed orders are the exception.
A point raised within the appeal from the decree — the interlocutory order’s error is argued there, not by a separate appeal.
The order’s error must have borne on the result. A harmless slip cannot be resurrected this way (compare § 99).
An interlocutory order is swept into the final decree; challenging the decree lets you challenge the order’s effect on it.
An order sending the case back to a lower court for fresh disposal — itself appealable (Order XLIII, r. 1(u)).
A bar (akin to constructive res judicata): fail to appeal an appealable remand order, and you cannot later challenge it.
Sub-section (2) operates in spite of the “ride-up” rule of (1) — for remand orders it is appeal-now-or-never, not raise-it-later.
The picture — orders ride up with the decree
Two currents. On the left, an interlocutory order carries no appeal of its own — but its error rises with the decree and is argued there (1). On the right, an order of remand already has an appeal; ignore it, and § 105(2) shuts the door — you cannot dispute it later.
Section 105, part by part
Sub-section (1) — no separate appeal from an order; but its error, if it affected the decision, rides up with the appeal from the decree.
Sub-section (2) — the exception that bites the other way: an order of remand that is appealable must be appealed now; let it pass, and you are precluded from disputing it.
How the parts work as one body
Carry it up — unless it was a remand you should have appealed
Connected provisions
Section 105 is the complement to § 104 in the appeals-from-orders cross-heading (§§ 104–106): orders not separately appealable are not lost — their errors ride up in the appeal from the decree (§ 96). Its preclusion in (2) is a cousin of constructive res judicata (§ 11, Expl. IV); § 106 fixes which court hears appeals from orders.