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 affects the decision of the case on the merits. The error, defect or irregularity within the meaning of S. 105 must mean an error, defect or irregularity in procedure or in law and not in matters of fact.
An order allowing or refusing amendment of a plaint can be challenged under S. 105, C.P.C., in the appeal from the decree that may be finally passed in the suit. The order of amendment may not affect the decision of the case as ultimately placed before the trial court after the amendment, but S. 105 does not preclude the appellate court from deciding whether the order of amendment affects the decision as originally placed before the trial court.
The word “decision” in S. 105 means decision upon the merits.
The principle of S. 105, C.P.C., extends to interlocutory orders passed in execution proceedings. An error or defect in such interlocutory order could be set forth as a ground of objection in the appeal.
In case of execution proceedings also, every order passed by an execution court in the course of proceedings under S. 47 does not necessarily amount to a decree so as to be appealable. In order to amount to a decree an order must be the formal expression of an adjudication which so far as regards the court expressing it conclusively determines the rights with regard to the matters in controversy. Interlocutory orders in execution proceedings which merely express the opinion of the court without finally determining the right of the parties are not, therefore, appealable.
Apart from the above the principle of S. 105 extends to interlocutory orders passed in execution proceedings and error or defect in such interlocutory order could be set forth as a ground of objection in the appeal. But where no objection is raised in the memorandum of appeal, the appellant is disentitled to question the correctness of the interlocutory order.