Sections 105, 106 and 107 of the Code of Civil Procedure, 1908
Sections 105, 106 and 107 CPC form part of the appellate framework under the Code of Civil Procedure, 1908. They deal with objections to non-appealable orders, the court to which an appeal from an order lies, and the powers and duties of an appellate court.
Section 105 CPC - 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 from which an appeal lies does not appeal therefrom, he shall thereafter be precluded from disputing its correctness.
Section 105 establishes the general rule that an appeal does not lie from every interlocutory or procedural order. However, when the final decree is appealed, an error, defect or irregularity in an earlier order that affected the decision of the case may ordinarily be raised as a ground of objection.
Section 106 CPC - What Courts to hear appeals
Where an appeal from any order is allowed it shall lie to the Court to which an appeal would lie from the decree in the suit in which such order was made, or where such order is made by a Court (not being a High Court) in the exercise of appellate jurisdiction, then to the High Court.
Section 106 identifies the appellate forum for an appeal from an order. Ordinarily, the appeal lies to the court that would hear an appeal from the decree in the suit in which the order was made. Where the order is made by a court other than a High Court while exercising appellate jurisdiction, the appeal from that order lies to the High Court.
Section 107 CPC - Powers of Appellate Court
(1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power-
(a) to determine a case finally;
(b) to remand a case;
(c) to frame issues and refer them for trial;
(d) to take additional evidence or to require such evidence to be taken.
(2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein.
Section 107 sets out the principal powers of an appellate court. These powers are subject to the conditions and limitations prescribed by the Code, including the applicable provisions of the First Schedule.
Meaning and practical effect of Sections 105, 106 and 107 CPC
Can every order passed during a civil suit be appealed?
No. Section 105 states that, unless expressly provided otherwise, no appeal lies from an order made by a court in the exercise of original or appellate jurisdiction. Where a decree is appealed, however, an earlier order affecting the decision may generally be challenged as a ground of objection, subject to Section 105(2).
Which court hears an appeal from an appealable order?
Under Section 106, the appeal ordinarily lies to the court that would hear an appeal from the decree in the suit. If the order is made by a court other than a High Court while exercising appellate jurisdiction, the appeal lies to the High Court.
What can an appellate court do under Section 107?
Subject to the Code, an appellate court may finally decide the case, remand it, frame issues and refer them for trial, or take additional evidence or direct that such evidence be taken. It also generally exercises powers and performs duties corresponding to those of a court of original jurisdiction.
Official reference
For the authoritative central text and amendments, refer to the Government of India publication of the Code of Civil Procedure, 1908.
Official Code of Civil Procedure, 1908 - Legislative Department