CODE OF CIVIL PROCEDURE

RECENT TRENDS OF PASSING INTERLOCUTORY ORDER

TABLE OF CONTENTS

1. List of Abbreviations
2. Introduction
3. Interlocutory Applications
4. Are Interlocutory Orders Appealable?
5. Interpretation by Courts
6. References
 List of Abbreviations
Anr. Another
EWHC England and Wales High Court
Hon’ble Honourable
Ors. Others
S.C. Supreme Court
v versus
AIR All India Reporter
SCC Supreme Court Cases
CPC Code of Civil Procedure

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 INTRODUCTION

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.

In the case of Amar Nath v. State of Haryana 1 , the Supreme Court has described
“interlocutory order” as under:

“The main question which falls for determination in this appeal is as to what is the
connotation of the term “interlocutory order” as appearing in sub-section (2) of Section 397
which bars any revision of such an order by the High Court. The term “interlocutory order” is

1
(1977) 4 SCC 137

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a term of well-known legal significance and does not present any serious difficulty. It has
been used in various statutes including the Code of Civil Procedure, Letters Patent of the
High Courts and other like statutes. In Webster’s New World Dictionary “interlocutory” has
been defined as an order other than final decision. Decided cases have laid down that
interlocutory orders to be appealable must be those which decide the rights and liabilities of
the parties concerning a particular aspect. It seems to us that the term “interlocutory order” in
Section 397(2) of the 1973 Code has been used in a restricted sense and not in any broad or
artistic sense. It merely denotes orders of a purely interim or temporary nature which do not
decide or touch the important rights or the liabilities of the parties. Any order which
substantially affects the right of the accused, or decides certain rights of the parties cannot be
said to be an interlocutory order so as to bar a revision to the High Court against that order,
because that would be against the very object which formed the basis for insertion of this
particular provision in Section 397 of the 1973 Code. Thus, for instance, orders summoning
witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in
aid of the pending proceeding, may no doubt amount to interlocutory orders against which no
revision would lie under Section 397(2) of the 1973 Code. But orders which are matters of
moment and which affect or adjudicate the rights of the accused or a particular aspect of the
trial cannot be said to be interlocutory order so as to be outside the purview of the revisional
jurisdiction of the High Court.”

In Central Bank of India v. Gokal Chand2, Supreme Court while describing the incidents of
an interlocutory order, observed as follows:

“In the context of Section 38(1), the words “every order of the Controller made under this
Act”, though very wide, do, not include interlocutory orders, which are merely procedural
and do not affect the rights or liabilities of the parties. In a pending proceeding, the
Controller, may pass many interlocutory orders under Sections 36 and 37, such as orders
regarding the summoning of witnesses, discovery, production and inspection of documents,
issue of a commission for examination of witnesses, inspection of premises, fixing a date of
hearing and the admissibility of a document or the relevancy of a question. All these
interlocutory orders are steps taken towards the final adjudication and for assisting the parties
in the prosecution of their case in the pending proceeding they regulate the procedure only
and do not affect any right or liability of the parties.”

2
AIR 1967 SC 799, 800 : (1967) 1 SCR 310

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The court may order for:
1. Detention, preservation or inspection of property or documents.
2. Authorize any person to enter into any land or building, which is in the possession of
other party, for the purposes of detention, preservation or inspection etc.

3. To authorize any person to take samples.

 Deposit of Money: If the subject matter of suit is money, or movable
 Property, the court may order the person holding the money in dispute to be
deposited in the court.
 Order of "Res judicata" ( Some issue cannot be raised, once decided) ( sec 10
& 11)
 "Res Judicata" means an issue, which has already been decided by the court,
in a previous case, cannot be raised again in a subsequent case.
 If such an issue, which is raised again, is substantial and material in
 a case, then the court may dismiss the whole case out rightly, before final
hearing

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 INTERLOCUTORY APPLICATIONS

“Interlocutory” means, means not that decides the cause but which only settles some
intervening matter relating to the cause. After the suit is instituted by the plaintiff and before
it is finally disposed off, the court may make interlocutory orders as may appear to the court
to be just and convenient. The power to grant Interlocutory orders can be traced to Section 94
of C.P.C. Section 94 summarises general powers of a civil court in regard to different types
of Interlocutory orders. The detailed procedure has been set out in the I Schedule of the C.P.C
which deals with Orders and Rules. Interlocutory orders may take various shapes depending
upon the requirement of the respective parties during the pendency of the suit. Applications
for appointment of Commissioner, Temporary Injunctions, Receivers, payment into court,
security for cause, and etc.

Out of these various interlocutory orders that can be passed, the court is called upon to decide
questions regarding grant of temporary injunction, receivers and commissions more
frequently than other interim orders.

Interlocutory Petition is defined under the Civil Rules of Practice, Rule 2 (j) to mean “an
application to the court in any suit, appeal or proceedings already instituted in such court,
other than a proceeding for execution of a decree or order”. It is interesting to note that the
word “application” is defined in Rule 2 (c) that includes execution application, execution
petition and interlocutory application, both written and oral.

Interlocutory Petitions are a form of incidental proceedings and they are in aid to the final
proceedings. An Interlocutory Petition is initiated with a view to prevent the ends of justice
from being defeated when the Original Petition is unable to address the immediate
circumstances. Interlocutory Applications or Interlocutory Petitions are filed to support the
main petition for an interlocutory relief during pendency of the main Petition.

However, interlocutory orders passed in the incidental proceedings have a direct bearing on
the result of the original petition and such orders may be issued in a divorce proceeding
where the interlocutory application is for maintenance, pending a decision on alimony and
child support. Further, courts may also issue interlocutory orders where property is about to

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be sold or forfeited and grant interlocutory injunction, preventing the transfer of property
until it has made a final decision.

In T.V. Satyanarayana vs Subba Aruna Meenakshi ILR 1988 KAR 10743, it was said that
the term Interlocutory Application” given in the Karnataka Civil Rules of Practice, 1967,
reads as:

“17.Interlocutory Application” means an application to the Court in any suit, appeal or

proceeding already instituted in such Court other than an application for execution of the
decree or setting aside the decree or final order made in such suit, appeal or proceeding.” An
application under Section 24 of the Hindu Marriage Act squarely falls within the meaning of
the words “Interlocutory Application”, as it could be made only in a main proceeding under
one or the other provisions of the Hindu Marriage Act. Any order passed on such an
application would certainly be an interlocutory order, Therefore, he submitted that
notwithstanding the fact that an interlocutory order made in an application presented under
Section 24 of the Hindu Marriage Act amounted to a ‘judgment’, the fact remains that it was
an interlocutory order. Therefore, he submitted that as Section 19(1) expressly provides that
an appeal lies only against any judgment or order, not being an interlocutory order, no appeal
lies against an order made for grant of interim maintenance under Section 24 of the Hindu
Marriage Act and notwithstanding the fact that it was a Judgment.

3
AIR 1967 SC 799, 800 : (1967) 1 SCR 310

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 ARE INTERLOCUTORY ORDERS APPEALABLE?

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.

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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.” 4,

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)].

An appeal is maintainable against' an interlocutory order provided it is a final, order on the

'miscellaneous petitions in the sense that it is not an ad interim order if the order substantially
affects or touches upon substantial rights and liabilities of the parties or are matters of
moment or matters which would cause real legal prejudice to the parties, even though the
parent originals proceedings is alive.5(Concurring opinion)

4
S.S. Khanna v. F.J. Dillon, 1973 A.L.J., 1068
5
K.S. Das v State of Kerala, MANU/KE/0581/1992

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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. A special provision was made as
regards orders of remand and that was to the effect that if an appeal lay and still the appeal
was not taken the correctness of the order of remand could not later be challenged in an
appeal from the final decision. If however an appeal did not lie from the order of remand the
correctness thereof could be challenged by an appeal from the final decision as in the cases of
other interlocutory orders.6

6
MANU/SC/0295/1960

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 INTERRETATION BY COURTS

In Swarna Prava Tripathy and Anr. Vs. Dibyasingha Tripathy and Anr 7 the court
observed

At this juncture it is necessary to pigeonhole which can be called interlocutory orders and
final orders. Interlocutory orders are of various kinds; some like orders of slay, 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 proceedings 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 application 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. An order may be final
for one purpose and interlocutory for another. The expression 'interlocutory order as used in
restricted and not in any broad or artistic sense, denotes orders of a purely interim or
temporary nature which do not decide or touch the important rights or liabilities of the
parties, in Webster's Third International Dictionary, the expression 'interlocutory' has been
defined as, 'not final or definite, made or done during the progress of an action; intermediate,
provisional'. The emphasis is, therefore, at the stage when the order is passed. Interlocutory
stage is decidedly the state between the cognisance taken by the Court and the judgment
pronounced. The interlocutory order is supplemental proceeding which is a means to an end
and not an end itself. The word 'interlocutory' means according to the import of the dictionary
'intermediate' and the interlocutory order is one passed during the progress of the proceeding
that is to say, interlocutory order must be an order passed after the initiation of the
proceedings and before the final order disposing of the matter. In New Webster's Dictionary,
College Edition, the meaning given is 'of the nature of, pertaining to, or occurring in,
conversation or dialogue; spoken intermediately, as interlocutory conversation interjected

7
AIR 1998 Ori 173, I (1999) DMC 316, 1998 II OLR 1

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into the main speech. Law, pronounced during the course of an action, as a decision or order,
not finally decisive of a case, pertaining to a provisional decision.' Interlocutory orders are
steps taken towards the final adjudication for assisting the parties in the prosecution of their
case in the pending proceedings. See Central Bank of India v. Gokul Chand AIR 1967 SC
799. Interlocutory inter alia means not that which decides the case, but that which only settles
some intervening matter relating to the cause. As interlocutory order is one which is made
pending the cause and before a final hearing on the merits. An interlocutory order is made to
secure some end and purpose necessary and essential to the progress of the suit, and generally
collateral to the issues formed by the pleadings and not connected with the final judgment.

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 REFERENCES

 http://www.advocatekhoj.com/library/lawareas/relief/interlocutory.php?Title=Civil%
20Procedure%20Code%20Relief&STitle=Interlocutory%20order
 http://www.shareyouressays.com/111404/what-are-interlocutory-orders-are-they-
appealable-in-india
 http://www.manupatrafast.in
 http://www.scconline.com


BOOKS

 Civil Procedure by C.K. Takwani

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