UNIT 4

1. “An executing Court cannot go behind the decree."

Elucidate the statement pointing out exceptions, if any.

2. What is an appeal? What are different kinds of appeal

under the Code of Civil Procedure? When and under
what circumstances can a Second Appeal be filed?

 What is an Appeal under CPC

The term ‘appeal’ nowhere has been defined under the CPC. The
Black’s Law Dictionary, while construing the concept of ‘appeal’ in its
most original and natural sense, explains it as “the complaint to a
superior court for an injustice done or error committed by an
inferior one, whose judgment or decision the Court above is called
upon to correct or reverse. It is the removal of a cause from a Court
of inferior jurisdiction to one of superior jurisdiction, for the purpose
of obtaining a review and retrial”.
An appeal is a judicial examination of the decision of an inferior
court, by a superior court i.e. it is the removal of a cause from an
inferior court to test the soundness of its decision, done by a
superior court. There is no formal definition of an “appeal” under the
CPC 1908.
The settled position in law is that an appeal is a substantive right
and not really a procedural one. Also, there can be an appeal only if
the statute allows for it. However, if an Act/Code does not provide
for a mechanism of appeal, it cannot be declared ultra-vires or
unconstitutional on that ground.
The essentials of an appeal are quite simple:
 There is a decision given by the subordinate court.
 The person is aggrieved by such a decision
 There is a reviewing body ready and willing to entertain an
appeal
Case laws
 Garikapati Veeraya v. Subbiah Chaudhary
In the instant case, it was held that the pre-existing right to appeal
to the Federal Court continued to exist and the old law which
created such a right also continued to exist. It construed to the
preservation of this right while recognizing the change in its judicial
machinery from the Federal Court to the Supreme Court. However,
the continuance of the old law is subject to the provisions of the
Constitution.
 In Nagendra Nath Dey v. Suresh Chandra Dey,
speaking for the Judicial Committee of Privy Council, Sir
Dinsha Mulla stated: "There is no definition of appeal in the
Code of Civil Procedure, but their Lordships have no doubt that
any application by a party to an appellate court, asking to set
aside or reverse a decision of a subordinate court, is an appeal
within the ordinary acceptation of the term

 What are different kinds of appeal under the Code of

Civil Procedure
 First Appeals [Section 96-99A and Order 41]

Section 96(1) provides that an aggrieved party can file an

appeal to a superior court against a decision of a subordinate
court either on a question of fact or a question of law or a
question involving a mix of both fact and law.

Note: First appeals can be filed in any court which may or may
not be the High Court.

Section 96 of the Code provides that the first way of challenging

the decree, passed by a court exercising the original jurisdiction,
is by filing an appeal in the court 'authorized to hear appeals'
from the decisions of such court. It also provides that, an appeal
may lie from an original decree passed ex parte, i.e., without
hearing the other party. No appeal will lie from a decree passed
by the Court with the consent of parties,

This kind of appeal is also known as 'the first appeal'. It is

permissible for the appellate court to re-examine and re-
appreciate the evidence, in the first appeal. The right to institute
the suit is an inherent right, but the right of appeal is statutory.
(Baldev Singh v. Surendra Mohan Sharma, AIR 2003 SC
225).
  Second Appeals [Section 100-103, 107-108 and Order

43]

Section 100-103 and 108 of CPC deals with the second appeal. This
part of the code contains provisions relating to appeal from
'appellate decrees' unlike from original decree. As the word "second
appeal' clearly denotes, it is an appeal filed against the order of an
appellate court. Second here denotes the number of appeals, in
laymen terminology. Section 100 provides that an appeal shall lie to
the High Court from every decree passed in appeal by any Court
subordinate to the High Court if the High Court is satisfied that the
case involves a substantial question of law. It must be noted that
second appeal only lies on the substantial question of law, not on
the question of facts.
In State Bank of India & Ors. v. S.N. Goyal, AIR 2008 SC
2594, the Supreme Court explained the term 'substantial question
of law, by observing that, "The word 'substantial' prefixed to
'question of law does not refer to the stakes involved in the case,
nor intended to refer only to questions of law of general importance,
but refers to impact or effect of the question of law on the decision
in the lies between the parties.
 Orders from which appeal lies[Section 104]

It is a general rule created under the Code that only decrees are
appealable and orders are non-appealable. However, there can be
circumstances where an order can largely affect the rights of the
parties to a suit and therefore, Section 104 was enacted to provide
a list of orders from which an appeal lies.
 Powers of Appellate Courts [Section 107]

1. Power to decide a case finally [Section 107(1)(a)- Order 41 Rule

24]
Where the original evidence is sufficient to enable the appellate
court to pronounce a judgement in the matter, no new evidence is
taken. However, in Sunder Singh v. Narain Singh, this was declared
as the general rule and, new evidence might be allowed in rare
cases.
2. Power to remand subordinate court [Section 107(1)(b), Order 41-
Rule 23 & 23A]:
This power is subject to the satisfaction of the following three
grounds:
 The case was disposed of by the trial court on a Preliminary
point.
 The decree under appeal has been reversed.
 Any other ground deemed fit by the Appellate Court.
3. Power to frame issues and refer them for trial [Section 107(1)(c),
Order 41-Rule 25 &26]
4. Power to take in additional evidence [Section 107(1)(d), Order
41-Rule 29 to 29]
5. Power to modify original decree [Order 41-Rule 33]
 Appeal to the Supreme Court [Section 109,112 and

Order 45]

Under Section 109 of the Code, an appeal shall lie to the Supreme
Court from any judgement, decree or final order in a civil
proceeding of the High Court, if the said High Court certifies:
 That the case involves a substantial question of law of general
importance.
 That it is the High Court’s opinion that the matter shall be
resolved by the Supreme Court.
Further, Section 112 states that the Civil Procedure Code’s
provisions shall not affect the power of the Supreme Court under
Article 136 of the Constitution or interfere with rules of Appeals
formulated by the Supreme Court.

LIMITATION ON APPEALS
Article 116(a) of the Limitation Act 1963 provides that an
appeal shall be brought to the Supreme Court within 60 days,
the High Court within 90 days and within 30 days (in case of
other appellate courts) of the date of the original or appellate
decree.

 When and under what circumstances can a Second

Appeal be filed
The second appeal can be filed only if there exists a substantial
question of law. In the case the question of law would be substantial
if it is of general public importance or which directly and
substantially affects rights of the parties.
Section 101 reads as “Second appeal on no other grounds— No
second appeal shall lie except on the ground mentioned in section
100.” therefore, it specifically bars the second appeal on any other
ground mentioned in Section 100. The grounds on which a Second
Appeal shall lie are:
(i) that the appeal should involve a substantial question of law that
may either be presented by the party in a memorandum of appeal
or the court may itself formulate such question;
(ii) that the second appeal may be brought forth where the decree
was passed ex parte;

3. What is appeal? Explain the powers and duties of

Appellate Court.

 What is an Appeal under CPC

The term ‘appeal’ nowhere has been defined under the CPC. The
Black’s Law Dictionary, while construing the concept of ‘appeal’ in its
most original and natural sense, explains it as “the complaint to a
superior court for an injustice done or error committed by an
inferior one, whose judgment or decision the Court above is called
upon to correct or reverse. It is the removal of a cause from a Court
of inferior jurisdiction to one of superior jurisdiction, for the purpose
of obtaining a review and retrial”.
An appeal is a judicial examination of the decision of an inferior
court, by a superior court i.e. it is the removal of a cause from an
inferior court to test the soundness of its decision, done by a
superior court. There is no formal definition of an “appeal” under the
CPC 1908.
The settled position in law is that an appeal is a substantive right
and not really a procedural one. Also, there can be an appeal only if
the statute allows for it. However, if an Act/Code does not provide
for a mechanism of appeal, it cannot be declared ultra-vires or
unconstitutional on that ground.
The essentials of an appeal are quite simple:
 There is a decision given by the subordinate court.
 The person is aggrieved by such a decision
 There is a reviewing body ready and willing to entertain an
appeal
Case laws
 Garikapati Veeraya v. Subbiah Chaudhary
In the instant case, it was held that the pre-existing right to appeal
to the Federal Court continued to exist and the old law which
created such a right also continued to exist. It construed to the
preservation of this right while recognizing the change in its judicial
machinery from the Federal Court to the Supreme Court. However,
the continuance of the old law is subject to the provisions of the
Constitution.
 In Nagendra Nath Dey v. Suresh Chandra Dey,
speaking for the Judicial Committee of Privy Council, Sir
Dinsha Mulla stated: "There is no definition of appeal in the
Code of Civil Procedure, but their Lordships have no doubt that
any application by a party to an appellate court, asking to set
aside or reverse a decision of a subordinate court, is an appeal
within the ordinary acceptation of the term
 Powers of Appellate Court-
(a) Power to decide a case finally: Section 107(1)(a),
Rule 24

Section 107(1)(a) and Rule 24 of Order 41 enable the

appellate court to dispose of a case finally. Where the
evidence on record is sufficient to enable the appellate court
to pronounce judgment, it may finally determine the case
notwithstanding that the judgment of the trial court has
proceeded wholly upon some ground other than that on
which the appellate court proceeds. The general rule is that
a case should, as far as possible, be disposed of on the
evidence on record and should not be remanded for fresh
evidence, except in rare cases," by drawing the final curtain
on the litigation between the parties. Fragmentary decisions
are most inconvenient and tend to delay the administration
of justice." "If life like a dome of many-coloured glass stains
 the white radiance of eternity, so do the doings and conflicts
of mortal beings till death tramples them down.
(b) Power to remand: Section 107(1)(b), Rules 23-23-
A

Rule 23 of Order 41 of the Code enacts that where the

trial court has decided the suit on a preliminary point
without recording findings on other issues and the appellate
court reverses the decree so passed, it may send back the
case to the trial court to decide other issues and determine
the suit. This is called remand.

Rule 23-A as inserted by the Amendment Act, 1976

enables the appellate court to remand a case where the
lower court has decided it on merits but the appellate court
considers such remand in the interest of justice.

By passing an order of remand, an appellate court directs

the lower court to reopen and retry the case. On remand,
the trial court will readmit the suit under its original number
in the register of civil suits and will proceed to determine it
as per the directions issued by the appellate court.
(c) Power to frame issues and refer them for trial:
Section 107(1)(c), Rules 25-26

Where the lower court has omitted

(i) to frame any issue; or
(ii) to try any issue; or
(iii) to determine any question of fact, which is essential to the
right decision of the suit upon merits, the appellate court
may frame issues and refer them for trial to the lower court
and shall direct that court to take the additional evidence
required. The lower court shall try such issues and shall
return the evidence and the findings within the time fixed
by the appellate court.
(d) Power to take additional evidence: Section 107(1)
(d), Rules 27-29
 As a general rule, the appellate court shall decide an appeal
on the evidence led by the parties before the trial court and
should not admit additional evidence for the purpose of
disposal of an appeal. Sub-rule (1) of Rule 27 also reads
thus, "The parties to an appeal shall not be entitled to
produce additional evidence, whether oral or documentary,
in the appellate court."

Section 107(1)(d), however, is an exception to the general

rule, and empowers an appellate court to take additional
evidence or require such evidence to be taken subject to
the conditions laid down in Rule 27 of Order 41.

(e) Power to modify decree: Rule 33

Rule 33 of Order 41 empowers an appellate court to make
whatever order it thinks fit, not only as between the
appellant and the respondent but also as between one
respondent and another respondent. It empowers an
appellate court not only to give or refuse relief to the
appellant by allowing or dismissing the appeal, but also to
give such other relief to any of the respondents as the case
may require.

Illustrations

a) A claims a sum of money as due to him from X or Y, and

in a suit against both obtains a decree against X. X appeals
and A and Y are respondents. The appellate court decides in
favour of X. It has power to pass a decree against Y.

(b) A claims a sum of money as due to him from X or Y. The

suit is decreed partly against X and partly against Y. X
appeals but Y does not. The appellate court can discharge X
making Y liable for the whole amount.

 Duties of Appellate Court-

(a) Duty to decide appeal finally
It is the duty of the appellate court to decide an appeal in
accordance with low after considering the evidence as a whole.
 The judgment of the appel- late court must clearly show that it
has applied its judicial mind to the evidence as a whole,

(b) Duty not to interfere with decree for technical

errors
Section 99 of the Code enacts that a decree which is otherwise
correct on merits and is within the jurisdiction of the court
should not be upset merely for technical and immaterial
defects. The underlying object of Section 99 is to prevent
technicalities from overcoming the ends of justice, and from
operating as a means of circuitry of litigation".

As observed by the Supreme Court, "When a case has been

tried by a Court on the merits and judgment rendered, it
should not be liable to be reversed purely on technical
grounds, unless it has resulted in failure of justice."

(c) Duty to reappreciate evidence

It has a duty to reappreciate the evidence. The court after
taking due care and caution should reappreciate the evidence
that was presented before the lower court to make sure that
the approach of the trial court while recording and appraising
the evidence was not erroneous or contrary to the established
principles.
 In T.D. Gopalan v. Hindu Religious & Charitable
Endowments, the Supreme Court observed, "We apprehend
that the uniform practice in the matter of appreciation of
evidence has been that if the trial court has given cogent and
detailed reasons for not accepting the testimony of a witness,
the appellate court in all fairness to it ought to deal with those
reasons before proceeding to form a contrary opinion about
accepting the testimony which has been rejected by the trial
court.

(d) Duty to record reasons

Again, though an appellate court has power to dismiss an
appeal sum marily, such power should be exercised sparingly
and in exceptional cases and, that too, after recording
reasons. If such appellate court is other than a High Court,
requirement of recording of reasons is mandatory. But in case
 of a High Court also, it is appropriate if it passes a speaking
order when dismissing an appeal in limine. Again, where High
Court (as First Appellate Court) finds trial court judgment to be
unsatisfactory and sets aside the judgment, it ought to
carefully examine facts and law and give cogent reasons for
setting aside such judgment.

Rule 31, however, enjoins an appellate court to record reasons

in port of its judgment. The judgment must be self-contained
with reasons in support of the findings arrived at by the court.
It must discuss the evidence in the light of points for
determination and come to its own conclusion

e) Other duties

An appellate court should not dismiss an appeal in limine

raising triable issues. An appeal can be admitted or dismissed
as a whole. It cannot be admitted partly. Once the appeal is
admitted, it cannot be dismissed on technical grounds. An
appellate court cannot grant stay against the execution of a
decree if an appeal is time-barred. Normally, it should not
grant stay against a money decree

4. Explain the term "execution". Which are the courts by

which decrees may be executed? Who can file
application for execution? Who are the parties against
whom execution proceedings may be drawn? What are
the different modes of execution of decrees?
 Execution
The term “execution” is not defined in the CPC. The term
“execution” means implementing or enforcing or giving
effect to an order or a judgment passed by the court of
justice. In simple words “execution” means the process
of enforcing or giving effect to the decree or judgment of
the court, by compelling the judgment-debtor to carry
out the mandate of the decree or order and enable the
decree-holder to recover the thing granted to him by
judgment.

Illustration:
 X files a suit against Y for Rs 20,000 and obtains a
decree against him. Here X would be called the decree-
holder, Y is the judgment-debtor, and the amount of Rs
20,000 is the judgment- debt. Y is bound to pay Rs
20,000 to X, as the decree is passed against him.
Suppose Y refuses to pay the decretal amount to X, X
can recover the said amount by execution through the
judicial process. The principles governing the execution
of a decree or order are given in Section 36 to Section 74
(substantive law) and Order 21 of the code which
provides for procedural law.

In Ghanshyam Das v. Anant Kumar Sinha dealing

with provision of the code relating to execution of decree
and orders, stated:

so far as the question of executability of a decree is

concerned, the Civil Procedure Code contains elaborate
and exhaustive provisions for dealing with it in all
aspects. The numerous rules of Order 21 of the code take
care of different situations providing effective remedies
not only to judgment-debtors and decree-holders but
also to claimant objectors, as the case may be. In an
exceptional case, where provisions are rendered
incapable of giving relief to an aggrieved party
inadequate measures and appropriate time, the answer is
a regular suit in the civil court.

 Which are the courts by which decrees may be

executed

Section 38 of the Code states that a decree can be

executed either by the Court of the first instance or by
the Court to which it has been sent for execution.

Section 37 of the Code further establishes the scope of

the expression “court which passed a decree” with
the object of enabling a decree-holder to recover the
fruits of the decree. The courts which fall within the said
expression are as follows:
 1. The court of the first instance;
2. The court which actually passed the decree in case of
appellate decrees;
3. The court which has jurisdiction to try the suit at the time of
execution, if the court of first instance ceased to exist;
4. The court which at the time of execution had jurisdiction to
try the suit, if the court of first instance has ceased to have
jurisdiction to execute the decree.

Explanation to the section clarifies that the court of first

instance shall have jurisdiction to execute a decree even in
the case of any area being transferred from the jurisdiction
of the court of first instance to the jurisdiction of any other
court. In such cases, the court to the jurisdiction of which
such area has been transferred will also have jurisdiction to
execute the decree, provided that the said court had
jurisdiction to try the said suit when the application for
execution was made.

 Who may apply for the execution {Rule 10}

The following persons may file an application for

execution:
 Decree-holder
 Legal representative of the decree-holder, if the decree-
holder is dead
 Representative of the decree-holder.
 Any person claiming under the decree-holder.
 Transferee of the decree-holder, if the following
conditions are satisfied:

a) The decree must have been transferred by an assignment in

writing or by operation of law;
b) The application for execution must have been made to the
court which passed the decree.
c) Notice and opportunity of hearing must have been given to the
transferor and the judgement-debtor in case of assignment by
the transfer.
The object of issuing a notice is to determine once and for all
 and in the presence of the parties concerned the validity or
otherwise of the assignment or transfer.

 One or more of the joint decree-holders, provided the

following conditions are fulfilled:

a) The decree should not have imposed any condition to the

contrary;
b) The application must have been made for the execution of the
whole decree and;
c) The application must have been for the benefit of all the joint
decree-holders.

 Who are the parties against whom execution

proceedings may be drawn
Execution may be taken out against the following persons:
 Judgement-debtor.
 Legal representative of the judgement-debtor, if the
judgement-debtor is dead.
 Representative of or the person claiming under the judgement-
debtor.
 Surety of the judgement-debtor.

 What are the different modes of execution of decrees

There are various modes of execution that is acceptable according
to Section 51 of the Code of Criminal Procedure. According to this
section, the various modes of execution of a decree are:

 Delivery of any property which is specifically

mentioned in the decree;

Delivery of property is one of the most famous modes of

executing a treaty. According to Order XXI Rule 79, it is said
that when the property that is sold is a movable property of
which actual seizure has been made, it shall be delivered to
the purchaser. Rule 35 of the Order XXI discusses the rules
regarding the decree of immovable property

 Attachment and sale of property;

 Section 60 of the Code of Civil Procedure provides the list of
properties which are liable to attachment and sale in
execution of the decree

Section 61 of the Code of Civil Procedure provides a partial

exemption of agricultural produce.

Order XXI, Rule 3 of the Code of Civil Procedure provides

that if the immovable property is located in more than the
local limits of the jurisdiction of one or more courts, then
one of the Court can sell and attach the property. According
to Order XXI, Rule 13, there has to be certain information in
the application for attachment of immovable property.

 Sale without an attachment of property;

 The arrest of the judgment debtor;

Section 55 of the Code of Civil Procedure deals with various

rules regarding the arrest and detention

 Detention of the judgment debtor;

Rule 37 of the Order XXI in the Code of Civil Procedure

provides discretionary power to the judgment debtor to
show cause against detention in prison.

 Appointment of a receiver.

Order XL of the Code of Civil Procedures contains various

provisions relating to the appointment of a receiver. The
Court will also fix appropriate remuneration for the services
provided by the receiver.

5. Explain the following terms

(a) Cross-Objection
(b) Substantial question of law
(c) Interference with concurrent findings.
Answer-
 a) Cross-Objection

Meaning
The expression "cross-objection" has not been defined in the Code.
Stated simply, cross-objections are filed by the respondent against
the appellant in an appeal filed by the appellant against the
respondent.
Order 41 Rule 22 is a special provision permitting the respondent
who has not filed an appeal against the decree to object to the said
decree by filing cross-objections in the appeal filed by the opposite
party. Filing of cross-objections by the respondent, however, is
optional and voluntary.
Nature
 The expression "cross-objection" expresses the intention of the
legislature hat it can be directed by the respondent by the
appellant. One cannot treat an objection by a respondent in
which the appellant has no interest as a cross-objection.
 The appeal is by the appellant against a respondent, the cross-
objection must be an objection by a respondent against the
appellant.
 A cross-objection I like cross-appeal. It has thus all the
trappings of an appeal. The mere distinction between the two
lies in the fact that whereas cross-objections form part of the
same record, cross-appeals are two distinct and independent
proceedings.

Who may file cross-objections?

Cross-objections can be filed by the respondent
1) if he could have filed an appeal against any part of the decree: or
2) if he is aggrieved by a finding in the judgement, even though the
decree is in his favour.

Cross appeals and cross-objections provide two different remedies

for the same purpose since the cross-objections can be filed on the
points on which that party could have preferred a cross appeal.

The right to file cross-objections is substantive in nature and not

merely procedural.

Against whom cross-objections may be filed

 Ordinarily, cross-objections may be filed only against the

appellant. In exceptional cases, however, one respondent may
file cross-objections against other respondents; for example,
when the appeal by some of the parties cannot effectively be
disposed of without opening the matter as between the
respondents inter se; or in a case where the objections are
common as against the appellant and co-respondent.

 Thus, where the relief sought against the appellant in cross-

objections is intermixed with the relief granted to the other
respondents in such a way that the relief against the appellant
cannot be granted without the question being reopened
between the objecting respondent and other respondents,
cross-objections by one respondent against the other
respondents may be allowed.

 The principle that no decision can be made against a person

who is not a party to the proceedings applies to cross-
objections also. Hence, cross-objections cannot be allowed
against a person whi is not a party to the appeal.
(b)Substantial question of law
The phrase substantial question of law, as occurring in the amended
Section 100 CPC is not defined in the Code. The word substantial, as
qualifying question of law, means of having substance, essential,
real, of sound worth, important or considerable. It is to be
understood as something in contradistinction with technical, of no
substance or consequence, or academic merely.

However, it is clear that the legislature has chosen not to qualify the
scope of substantial question of law by suffixing the words of
general importance as has been done in many other provisions such
as Section 109 of the Code or Article 133 (1)(a) of the Constitution.
The substantial question of law on which a second appeal shall be
heard need not necessarily be a substantial question of law of
general importance.
In Guran Ditta Vs Ram Ditta [(1927-28) 5I5 IA 235 : AIR
1928 PC 172] the phrase substantial question of law as it was
employed in the last clause of the then existing Section 100 CPC
(since omitted by the Amendment Act, 1973) came up for
consideration and their Lordships held that it did not mean a
substantial question of general importance but a substantial
question of law which was involved in the case.

In Sir Chunilal case [1962 Supp (3) SCR 549 : AIR 1962 SC
1314] the Constitution Bench expressed agreement with the
following view taken by a Full Bench of the Madras High Court
in Rimmalapudi Subba Rao v. Noony Veeraju [AIR 1951 Mad
969: (1951) 2 MLJ 222 (FB)]: (Sir Chunilal case [1962 Supp (3)
SCR 549: AIR 1962 SC 1314], SCR p. 557)

When a question of law is fairly arguable, where there is room for

difference of opinion on it or where the Court thought it necessary
to deal with that question at some length and discuss alternative
views, then the question would be a substantial question of law. On
the other hand if the question was practically covered by the
decision of the highest court or if the general principles to be applied
in determining the question are well settled and the only question
was of applying those principles to the particular fact of the case it
would not be a substantial question of law.

To be substantial, a question of law must be debatable, not

previously settled by the law of the land or any binding precedent,
and must have a material bearing on the decision of the case and/or
the rights of the parties before it, if answered either way.
Substantial Question of Law
The phrase “substantial question of law” has not been defined in the
Civil Procedure Code. No universally applicable rule can be
formulated to determine when a substantial question of law has
arisen.
The English meaning of the word substantial is “of considerable
importance.”
The Supreme Court stated in Chunilal V Mehta and Sons Ltd vs
Century Spinning. & Mfg. Co. Ltd (1962) that the proper test for
determining whether a question of law raised in the case is
substantial would be whether it is of general public importance or
whether it directly and substantially affects the rights of the parties.
At the same time, it should be noted that to invoke the jurisdiction
of the High Court under section 100 of CPC, the substantial question
of law does not have to be of general importance.
In Raghunath Prasad Singh vs the Deputy Commissioner of
Pratapgarh (1929), the court stated that a substantial question of
law means a substantial question of law as between the parties in
the case at hand.
The court observed in Mahant Har Kishan Das vs Satgur Prasad
(1951) that a question of law is substantial as between the parties
if the decision turns one way or the other on the particular view of
the law. If it does not affect the decision, it cannot be said to be
substantial as between the parties.
(c) Interference with concurrent findings
Under the Code of Civil Procedure, 1908, concurrent findings of fact
by lower courts are generally accorded significant weight, and
interference with such findings in a second appeal is limited. The
general principle is that the High Court, hearing a second appeal,
should not interfere with concurrent findings of fact unless there are
compelling reasons to do so. Here are the key points regarding
interference with concurrent findings:
 Scope of Second Appeal: A second appeal primarily deals with
questions of law, and not questions of fact. The High Court's
jurisdiction in a second appeal is limited to examining the legal
correctness of the lower courts' decisions, rather than
reassessing the evidence or reappreciating the factual findings
made by those courts.
 Findings of Fact: Findings of fact made by the trial court and
affirmed by the lower appellate court are considered to be
binding in a second appeal. The High Court will generally not
re-evaluate or overturn those findings unless there is a clear
error of law or a substantial question of law arises from such
findings.
 Substantial Question of Law: For the High Court to interfere
with concurrent findings of fact in a second appeal, there must
be a substantial question of law involved. This means that the
 appellant must demonstrate that there is an important legal
issue that needs to be addressed and that the lower courts
have made an error in applying or interpreting the law.
 Perversity or Illegality: The High Court may interfere with
concurrent findings of fact if it finds that the lower courts'
conclusions are based on perverse or illegal reasoning, or if
the findings are completely unsupported by the evidence on
record.
 Misinterpretation of Evidence: If the lower courts have
misinterpreted or misappreciated crucial evidence, resulting in
a miscarriage of justice or a violation of legal principles, the
High Court may intervene.
 Substantial Error of Law: In exceptional cases, where there is
a clear and substantial error of law committed by the lower
courts, the High Court may interfere with the concurrent
findings of fact to rectify the legal error and ensure justice is
served.

6. Discuss the scope and ambit of the power of review

under the Code of Civil Procedure,1908. How is review
different from reference?

 Scope and Ambit

The normal principle of law is that once a judgment is
pronounced or order is made, the court becomes functus
officio. Such judgment or order is final and it cannot be
altered or changed.

As a general rule, once an order has been passed by a

court, a review of such order must be subject to the rules of
the game and cannot be lightly entertained. A review of a
judgment is a serious step and reluctant resort to it is called
for only where a glaring omission, patent mistake or like
grave error has crept in earlier by judicial fallibility."

A power of review should not be confused with appellate

powers which enable an appellate court to correct all errors
committed by the subordinate court. In other words, it is
beyond dispute that a review cannot be equated with the
original hearing of the case, and finality of the judgment by
 a competent court cannot be permitted to be reopened or
reconsidered, unless the earlier judicial view is manifestly
wrong." It is neither fair to the court which decided the
matter nor to the huge backlog of dockets waiting in the
queue for disposal to file review petitions indiscriminately
and fight over again the same battle which has been fought
and lost. Public time is wasted in such matters and the
practice, therefore, should be deprecated. Greater care,
seriousness and restraint is needed in review applications."

If a review application is not maintainable, it cannot be

allowed by describing such an application as an application
for "clarification" or "modification".

A right of review is both, substantive as well as procedural.

As a
substantive right, it has to be conferred by law, either
expressly or by necessary implication. There can be no
inherent right of review. As a procedural provision, every
court or tribunal can correct an inadvertent error which has
crept in the order either due to procedural defect or
mathematical or clerical error or by misrepresentation or
fraud of a party to the proceeding, which can be corrected
ex debito justitae (to prevent the abuse of process of
court).
Distinction between Reference and Review
 In reference the subordinate court refers the case to the
High Court while in review an application is made by the
aggrieved party.
 The High Court alone can decide matters on reference while
an application for review is made to the court which passed
the decree or made the order.
 Reference is made during the pendency of the suit, appeal
or execution proceedings, while application for review is
made to the court after it has passed the decree or made
the order.
 The grounds of reference and review are different.
Reference is made by the court trying the suit, appeal or
executing the decree when it entertains reasonable doubt
with regard to any question of law or usage having the force
 of law. The grounds of review may be the discovery of new
and important matter or evidence, some apparent mistake
or error on the face of the record or any other sufficient
reason.

Aspect Reference Review

When a court refers a question

to a higher court for its opinion A court reviews its own
Definition or decision. decision or order.

Initiated by the lower court or Initiated by the same court

tribunal referring the question that passed the original
Initiation to the higher court. decision or order.

To seek the opinion or decision

of a higher court on a question To correct an error or
of law or a point of law that omission in the court's own
Purpose arises during the proceedings. decision or order.

Applicable when a question of

law or a point of law arises Applicable when the court
during the proceedings, and the realizes that there is an
lower court seeks the guidance error or omission in its own
Applicability of a higher court. decision or order.

Involves two courts: the

referring court (lower court)
and the court to which the Involves a single court—the
Court reference is made (higher same court that passed the
involved court). original decision or order.

The higher court gives its The same court reviews its
opinion or decision on the own decision or order and
Decision- question referred, which is decides whether to modify,
making binding on the lower court. alter, or confirm it.

To rectify errors, omissions, or

defects in the court's decision or To ensure the correctness,
order that have occurred due to legality, or propriety of the
Purpose of oversight, mistake, or court's own decision or
review inadvertence. order.

Time No specific time limitation for Generally, a review

Aspect Reference Review

application must be filed

within 30 days from the
the higher court to give its date of the court's original
limitation opinion or decision. decision or order.

Limited grounds, such as

discovery of new and important Limited grounds, including
matter or evidence, an error an error of law, an error of
apparent on the face of the fact apparent on the record,
Grounds for record, or any other sufficient or any other valid ground
review reason. justifying a review.

7. On what ground a second appeal lies? Distinguish

between second appeal and revision.
Section 101 reads as “Second appeal on no other grounds—
No second appeal shall lie except on the ground mentioned in
section 100.” therefore, it specifically bars the second appeal
on any other ground mentioned in Section 100. The grounds
on which a Second Appeal shall lie are:

(i) that the appeal should involve a substantial question of law

that may either be presented by the party in a memorandum
of appeal or the court may itself formulate such question;

ii) that the second appeal may be brought forth where the
decree was passed ex parte;

Substantial Question of Law:

A Second Appeal can only be entertained if it involves a

substantial question of law. The expression is not defined in
the Code, however, the Supreme Court in Sir Chunilal V.
Mehta And Sons, Ltd. vs The Century Spinning And
Manufacturing Co., Ltd. laid down that “The proper test for
determining whether a question of law raised in the case is
substantial would, in our opinion, be whether it is of general
public importance or whether it directly and substantially
affects the rights of the parties and if so whether it is either an
open question in the sense that it is not finally settled by this
 Court or by the Privy Council or by the Federal Court or is not
free from difficulty or call for discussion of alternative views.”

To be a ‘substantial’ question of law, the same should be

debatable, not have been previously determined by the lower
courts and should not be an applicable precedent in any form.
Whether the question of law is ‘substantial’ or not is to be
decided by the High Court and that may depend upon the facts
and circumstances of each case. The proviso to Section 100(5)
gives the court the power to hear questions which were not
formulated by it but they form a part of the substantial
question of law if the court is satisfied that case involves such
a question. In Mahindra & Mahindra Ltd. v. Union of India
& Anr, the court observed that “Under the proviso, the Court
should be ‘satisfied’ that the case involves a substantial
question of law and not a mere question of law. The reason for
permitting the substantial question of law to be raised should
be recorded by the Court.”

Distinction between Second Appeal and Revision

 A second appeal lies to the High Court from every decree
passed in appeal by a subordinate court only if the High Court
is satisfied that the case involves a substantial question of law.
The grounds of revision are, however, different. They relate to
jurisdiction.
 The revisional powers of the High Court can be invoked in
cases which no appeal or second appeal lies to the High Court.
This is not so in second appeal.
 The Court will not in its revisional jurisdiction enter into merits
of the case however erroneous the decision of the lower court
is on an issue of law or of fact but will interfere only to see
that requirements of law have been properly obeyed by the
court whose order is the subject of revision. Although no
second appeal can be preferred on a question of fact yet when
such an appeal is already before the High Court, it may
determine issues of fact where such issues have not been
determined provided that the evidence on the record is
sufficient for such determination.
 In revisional matters the High Court may decline to interfere if
it is satisfied that substantial justice has been done. But on
questions of law in second appeal, no discretion vests in the
 High Court and it has no right to decide merely on equitable
grounds.

Aspect Second Appeal Revision

Appeal from a lower appellate

Nature court Petition to a higher court

High Court or District Court

Jurisdiction High Court (in some cases)

Error, illegality, or
Grounds Substantial question of law impropriety

Findings of
Fact Generally not re-evaluated Generally not re-evaluated

Scope Questions of law Questions of law and fact

Limited, unless substantial Discretionary, based on

question of law or legal error error, illegality, or
Interference is present impropriety

Appellant, Respondent from

Parties the lower appellate court Petitioner, Opposite Party

90 days from the date of the

Time Limit decree No specific time limit

Can be subject to further Generally final, except in

Finality appeal certain cases

Appellate High Court or District Court

Authority High Court (in some cases)

8. Write an exhaustive note on inherent powers of the civil

court.
The inherent power of the court is that which is inherent in a court
by the very fact of its being empowered to exercise any jurisdiction
at all so that it comes within the express sense of the law of within
the consequences that may be gathered from it.
 Inherent powers of courts are those powers which may be applied
by the court to perform full and complete justice between the
parties before it. It is the duty of the Courts to serve justice in every
case, whether given in this code or not, brings with it the important
power to do justice in the absence of a definite or separate
provision. This power is said to be the inherent power that is
maintained by the court, though not conferred.
The inherent powers of the court are in addition to the powers
specifically conferred on the court by the Code. They are
complementary to those powers and the court is free to exercise
them for the ends of justice or to prevent the abuse of the process
of the court.
 In the Case of Manohar Lal Chopra V. Seth Hiralal AIR
1962, As Justice Raghubar Dayal rightly states, "The inherent
power has not been conferred upon the court; it is a power
inherent in the court by virtue of its duty to do justice between
the parties before it."
Section 148 to 155-B of The Code of Civil Porcedure,1908
deals with inherent powers of court and they are-
I. Enlargement of Time (Section 148)-
Section 148 provides that where any period is fixed or
granted by the court for the doing of any act, the court has
power to enlarge the said period even if the original period
fixed has expired."
Where a court in the exercise of its jurisdiction can grant
time to do a thing, in the absence of a specific provision to
the contrary curtailing, denying or withholding such
jurisdiction, the jurisdiction to grant time would include in
its ambit the jurisdiction to extend time initially fixed by it.

Before extension of time is granted by a court, two

conditions must be fulfilled:

(1) A period must have been fixed or granted by the court;

and

(ii) Such period must be for doing an act prescribed or

allowed by the Code.
 The power conferred by the Code on the court is
discretionary. The court "may" use it for securing the ends
of justice. It cannot be claimed by the party as of right.
Before exercising the power, therefore, the court may take
into account all the facts and circumstances including the
conduct of the applicant.

II. Payment of Court Fees (Section 149)-

Section 149 empowers the court to allow a party to make
up the defi ciency of court fees payable on a plaint,
memorandum of appeal, etc. even after the expiry of the
period of limitation prescribed for the filing of such suit,
appeal, etc. Section 4 of the Court Fees Act, 1870
provides that no document chargeable with court fee under
the Act shall be filed or recorded in any court of justice,
unless the requisite court fee is paid.

Section 149 of the Code of Civil Procedure is a sort of

proviso to that rule by allowing the deficiency to be made
good within a period fixed by it. If the proper court fee is
not paid at the time of filing, of a memorandum of appeal,
but the deficit court fee is paid within the time fixed by the
court, it cannot be treated as time barred. Thus, the
defective document is retrospectively validated for the
purposes of limitation as well as court fees. The power,
however, is discretionary and should be exercised,
judiciously and in the interests of justice.

III. Transfer of Business (Section 150)-

Section 150 of the Code declares that where the business
of any court is transferred to any other court, the transferee
court will exercise same powers and discharge same duties
conferred or imposed by the Code upon the transfer court.

IV. Ends of Justice (Section 151)-

The inherent powers saved by Section 151 can be used to
secure the ends of justice. Thus, the court
a) can recall its own orders and correct mistakes;
b) can set aside an ex-parte order passed against the
party;
 c) can issue temporary injunctions in cases not covered
by the provisions of Order 39;
d) can add, delete or transpose any party to a suit;
e) can set aside illegal orders or orders passed without
jurisdiction;
f) can revive execution applications; can take notice of
subsequent events;
g) can hold trial in camera or prohibit excessive
publication of its proceedings;
h) can allow amendments of pleadings; can correct errors
and mistakes;
i) can expunge remarks made against a judge can
extend time for payment of court fees;
j) can extend time to pay arrears of rent;
k) can restore the suit and rehear it on merits;
l) can review its orders, etc.
What would meet the ends of justice would always depend
upon the facts and circumstances of each case and the
requirements of justice.

V. Abuse of process of court (Section 151)-

The inherent powers under Section 151 can also be
exercised to prevent the abuse of the process of a court.
Such abuse may be committed by a court or by a party.
Where a court employs a procedure in doing something
which it never intended to do and there is miscarriage of
justice, there is an abuse of process by the court itself. The
injustice so done to the party must be remedied on the
basis of the doctrine actus curiae neminem gravabit (an act
of the court shall prejudice no one). Similarly, a party to a
litigation may also be guilty of an abuse of the process of
the court, eg. by obtaining benefits by practising fraud on
the court;or upon a party to the proceedings; or by
circumventing the statutory provisions; or by resorting to or
encouraging multiplicity of proceedings, etc.

VI. Amendments of Judgements, Decrees, orders and

other Records (Section 152,153,153A)-
 Section 152 enacts that clerical or arithmetical mistakes in
judgments, decrees or orders arising from any accidental slip
or omission may at any time be corrected by the court either
 of its own motion (suo motu) or on the application of any of
the parties.
The section is based on two important principles:
(1) an act of court should not prejudice any party, and
(2) it is the duty of courts to see that their records are true
and they represent the correct state of affairs.
 Section 153, confers a general power on the court to amend
defects or errors in "any proceeding in a suit" and to make all
necessary amendments for the purpose of determining the real
question at issue between the parties to the suit or other
proceeding.
 Section 153-A as inserted by the Amendment Act of 1976
provides that where the appellate court dismisses an appeal
summarily under Order 41 Rule 11, The power of amendment
under Section 152 can be exercised by the court of first
instance.
Limitation
 The exercise of inherent powers carries with it certain barriers
such as:
 They can be applied only in the deficiency of particular
provisions in the Code;
 They cannot be applied in dispute with what has been
expressly given in the code;
 They can be applied in rare or exceptional cases;
 While operating the powers, the court has to follow the
method shown by the legislature;
 Courts can neither exercise jurisdiction nor entrust in them by
law;
 To abide by the principle of Res Judicata i.e., not to open the
issues which have already been decided finally;
 To pick a mediator to make an award afresh;
 Substantive rights of the parties shall not be taken away;
 To limit a party from taking proceedings in a court of law; and
 To set apart an order which was valid at the moment of its
issuance.

Case Law
In the case, Padam Sen v. The State of Uttar Pradesh,AIR1961
SC 218, Hon’ble Supreme Court observed:
The inherent powers are in addition to the powers expressly
provided by the Coe on the Court. They are complementary to those
powers and therefore it must be held that the Court is free to
exercise them for the purpose mentioned in S. 151 of the Code, but
only when the exercise of those powers is not in conflict with what
has been already provided in the Code or against the intentions of
the Legislature.
9. 'An executing court cannot go behind the decree'.
Elucidate. Can an executing court interfere with the
decree? Illustrate your answer.

10. What are the requirements of Notice under Section

80 of Civil Procedure Code? Write a draft notice under
Section 80 of the Civil Procedure Code.

Notice under Section 80 of Civil Procedure Code, 1908:

In suits between individuals and individuals, notice need not
be given to the defendant by the plaintiff before filing a suit
but under Section 80 it is provided that notice has to be given
in a suit against Government or public officer in respect of any
act purporting to be done by such public officer in his official
capacity.

Section 80 of the Code provides that no suit shall be instituted

against the Government or against a public officer in respect of
any act purporting to be done by such public office in his
official capacity until the expiration of two month next after
notice in writing has been delivered to, or left at the office of:

i. In case of the suit against the Central Govt., except where it

relates to a railway, a Secretary to that Govt;
ii. In the case of a suit against the Central Govt. where it relates
to a railway, the General manager to that railway;
iii. In the case of a suit against the Govt. of the State of Jammu
and Kashmir, the Chief Secretary to that Govt. or any other
officer authorized by that Govt. in that behalf;
iv. In the case of a suit against any other state Govt.. a Secretary
to that Govt. or the Collector of the district; and
 v. In the case of a public officer, such public officer.Further it
provides that with the permission of the Court, a suit can be
instituted without serving the notice where an urgent or
immediate relief is needed. Provided that Court shall return
the Plaint if found that there is no need of immediate or urgent
relief.

The Section enumerates two types of case:

1. Suit against Government; and
2. Suit against public officers in respect of acts done or
purporting to be done by such public officers in their official
capacity.

The three essential requirements of S. 80 are:

I. First, the addressee should be identified and must have
received the communication;
II. Secondly, there should be no vagueness or indefiniteness
about the person giving the notice, who must also be the
person filing the suit and the notice must also give the details
which are specified in S. 80; and,
III. Thirdly, the two months' time allowed must expire before the
suit is laid. Once these requirements are fulfilled minor details
like the misdescription of the person to whom the
communication is addressed should not make it an improper
notice which does not comply with the requirements of S. 80,
C.P.C

Object of Notice:
Underlying object of section 80 is to provide:

I. An opportunity to the Government or public officer to consider

the legal position and to settle the claim forwarded by the
prospective plaintiff if it appears to be just and proper.
II. It is expected from the government unlike private parties to
consider the matter objectively and make an appropriate
decision in two months after obtaining proper legal advice. It
saves public money and time and is in public interest.
III. The legislative intent behind this provision is that public money
not be wasted for unnecessary litigation. The section guides
the Government or a public officer to negotiate just claims and
to settle them if well‐founded without adopting an
 unreasonable attitude by inflicting wasteful expenditure on
public exchequer.

11. Distinguish between:

(a) Review and Appeal.
(b) Necessary Party and Proper party
(c) Legal Set-off and equitable Set off

(a) Review and Appeal

Aspect Appeal Review

It is an application or
petition to appeal to
higher Court for
consideration of the
decision of lower court.
It is the power of the Review means to reconsider, to look again or to re-
court to re-examine a examine. In legal sense, it is a judicial re-examination
Meaning matter of the case by the same court and by the same Judge.

The appellate courts

can re-examine the
questions of fact and
law and may even re-
appreciate evidence.
The powers of the first
appellate court are co-
extensive with those of
the civil court of To rectify any error made in an order resulting in
Object
original jurisdiction of affecting the interest of a party. The same court and
any other court. same judge review the judgement

Appeal is provided
Provision under section 96 of Cpc Review is provided under section 114 of Cpc.

Grounds 1. There is a case 1. Discovery of new and important matter or

decided by a evidence. Such evidence must be: –
subordinate Court in
(a) Relevant
which no appeal lies to
(b) Or of such character that if it had been given it
Aspect Appeal Review

the High Court.

2. Any party to the suit,

is adversely affected by
the decree or the
transferee of interest
of such party has been
adversely affected by
the decree provided his
name was entered into
record of suit.
3.When an auction
purchaser from an
order in execution of a
decree wants to set
aside the same on the
might possibly have altered the judgment.
grounds of fraud.
4. When any person is
bound by the decree 2. Mistake or error
and decree would
operate res judicata
against him. 3.Other sufficient reason.

A right of appeal is a
substantive right given There is no right of revision. The court has
Right by statute. discretionary power to exercise revison.

Generally based on the

Evidence existing record May consider additional evidence, if necessary

Can result in reversal,

modification, or Can result in affirmation, modification, or setting
Decision remand aside

Parties to the original

Parties case are involved Usually limited to the parties involved in the case

Time Limits Specific time limits for Generally shorter time limits for filing a review
Aspect Appeal Review

filing an appeal

An appeal lies to a
superior court, which
may not necessarily be
Court a High Court Application for revision lies only the High Court.

(b) Necessary Party and Proper Party

Aspect Necessary Party Proper Party

A necessary party is
one whose presence
is essential for a A proper party is one who has an
complete and interest in the subject matter of the
effective case, but whose presence is not
adjudication of the essential for a complete adjudication of
Definition dispute. the dispute.

The absence of a
necessary party can
render the
proceedings
defective, and the
court cannot The absence of a proper party does not
effectively decide affect the court's ability to decide the
Impact on the case without case, as their interest can be adequately
Case their participation. protected without their presence.

A necessary party
must be included in
the lawsuit as a
party to the
proceedings. Failure
to include them A proper party is not mandatory to be
may result in included in the lawsuit, but they can be
dismissal or joined if necessary to avoid multiplicity
Compulsory abatement of the of suits or for a complete determination
Inclusion suit. of the issues.
Aspect Necessary Party Proper Party

A necessary party is
entitled to assert
their rights, seek
relief, and A proper party may have an interest in
participate in the the subject matter, but their absence
proceedings, as does not deprive them of any rights or
Rights and their absence may relief, and they can still be bound by the
Relief affect their rights. court's decision.

Co-owners of a
property in a suit
for partition are
necessary parties as A mortgagee of a property in a suit for
their presence is possession is a proper party as their
essential for a interest can be protected without their
complete and presence, and the court can decide the
effective dispute between the mortgagor and the
Examples adjudication. plaintiff.

(c) Legal Set-off and equitable Set off

Particulars Legal Set off Equitable Set off

The concept of legal

The concept of equitable
set off is provided in
set off is provided under
Concept Order VIII Rule 6(1)
“equity, justice, good
under Code of Civil
conscience”.
Procedure, 1908.

The equitable set off is

The legal set off shall
granted on the facts and
Legal aspect be claimed as a
circumstances and on the
matter of right.
discretion of the court.

Recovery of In the legal set off the In the equitable set off the
money amount which is amount which is recovered
recovered is must be ascertained and
ascertained and within the case is admitted at the
the pecuniary
 jurisdiction of the
discretion of the court.
court.

In the equitable set off the

court fees may not be paid
In legal set off the
by the defendant and it
Court fees court fees are to be
depends on different facts
paid by the defendant.
and circumstances of the
case.

The claim for equitable set

Limitation It is within the off is accepted beyond the
period limitation period. limitation period, it is at
the discretion of the court.

12. Write Notes on:

I. Caveat
II. Reference
(I) CAVEAT
The word (caveat) has been derived from Latin which
means "beware". According to the dictionary meaning ,“a
caveat is an entry made in the books of the offices of a
registry or court to prevent a certain step being taken
without previous notice to the person entering the caveat".

A caveat is a caution or warning given by a party to the

court not to take any action or grant any relief to the
applicant without notice or intimation being given to the
party lodging the caveat and interested in appearing and
objecting to such relief. It is very common in testamentary
proceedings. It is a precautionary measure taken against
the grant of probate or letters of administration, as the case
may be, by the person lodging the caveat. The person filing
or lodging a caveat is called "caveator". Section 148-A of
the Code of Civil Procedure provides for lodging of a caveat.

The underlying object of a caveat is twofold:

 Firstly, to safeguard the interest of a person against an order
that may be passed on an application filed by a party in a suit
 or proceeding instituted or about to be instituted. Such a
person lodging a caveat may not be a necessary party to such
an application, but he may be affected by an order that may
be passed on such application. The section thus affords an
opportunity to such party of being heard before an ex parte
order is made.

 Secondly, it seeks to avoid multiplicity of proceedings. In the

absence of such a provision, a person who is not a party to
such an application and is adversely affected by the order has
to take appropriate legal proceedings to get rid of such order.

When a caveat is lodged, the court will serve a notice of an

application on the caveator. The section obliges the applicant
who has been served with a caveat to furnish the caveator, at
the caveator's expense, a copy of the application along with
copies of papers and documents submitted by him in support
of his application. A Caveat will remain in force for 90 days
from the date of its filing and after prescribed period of 90
days is over, caveat may be renewed.

ii. Reference
Reference means where the subordinate Court refers the case
involving the questions of law to the High Court for the opinion on
that matter. Reference is made to the High Court where it has a
reasonable doubt during any suit appeal execution proceeding etc.
Section 113 of Civil Procedure Code deals with the provision of
reference. Under the provision of Section 113, a lower or
subordinate court can reach out to higher court for the doubt in
order to avoid the misinterpretation of the law which is called
reference.
The underlying object for the provision for reference is to enable
subordinate court in non-appealable cases the opinion of the High
court and thereby avoid the commission of error which could not be
remedied later on. Such provision also ensures that the validity of a
legislative provision (Act, Ordinance or Regulation) should be
interpreted and decided by the highest court in the state. The
reference must, therefore, be made by passing of the judgment in
the case.

Conditions For Reference

The right of reference is usually limited by the procedure laid down

in Order 46 Rule 1. The rule specifies the following procedure to be
followed before any reference is made:

 There must be a pending suit or appeal in which the decree

is not subject to appeal or a pending proceeding in
execution of such decree.
 A question of law or usage having the force of law must
arise in the course of the suit, appeal or proceeding.
Questions of law can be divided into two classes:

 Those which relate to the validity of an Act, Ordinance and

Regulation, and
 Other questions.

13. What matters can be referred to High Court and

when? Discuss the powers of High Court in reference.
When can a District Court interfere with a suit in its
subordinate court for making a reference to High Court?
Section 113 of the Code of Civil Procedure, empowers a
subordinate court to state a case and refer the same for the opinion
of the High Court. Such an opinion can be sought when the court
itself is doubtful about a question of law. The High Court may make
such order thereon as it thinks fit. Such opinion can be sought by a
court when the court trying a suit, appeal or execution proceedings
entertain reasonable doubt about a question of law.
The underlying object for the provision for reference is to enable
subordinate court in non-appealable cases the opinion of the High
court and thereby avoid the commission of error which could not be
remedied later on. Such provision also ensures that the validity of a
legislative provision (Act, Ordinance or Regulation) should be
interpreted and decided by the highest court in the state. The
reference must, therefore, be made by passing of the judgment in
the case.
  Section 113 of the Code of Civil Procedure provides that
reference should be made to the High Court only when the
presiding judge has a reasonable doubt on the point of law or
any usage having the force of law, and such reference needs
to be decided for the proper disposal of the case. This makes it
clear that the parties cannot ask the presiding judge to refer
any question of law to the High Court.
The proviso which is attached to the Section states that only
those questions must be referred to, whose decision is
necessary for the proper disposal of the case in hand, and the
Act/ordinance/regulation which is being challenged is in the
opinion of that subordinate court is invalid or inoperative, but
the same has not been declared by the Supreme Court or the
High Court of that state.

Conditions For Reference

The right of reference is usually limited by the procedure laid down

in Order 46 Rule 1. The rule specifies the following procedure to be
followed before any reference is made:

 There must be a pending suit or appeal in which the decree

is not subject to appeal or a pending proceeding in
execution of such decree.
 A question of law or usage having the force of law must
arise in the course of the suit, appeal or proceeding.
Questions of law can be divided into two classes:

 Those which relate to the validity of an Act, Ordinance and

Regulation, and
 Other questions.

Powers of High court in reference

I. The jurisdiction of the High Court is consultative. (Delhi
Financial Corporation v. Ram Parshad AI 1977)
II. In dealing with the question referred to it, the High Court
is not confined to the question referred it can consider a
new aspect which may arise.
 III. The high court may answer the question so referred to it
and send it back to the referring court to be disposed of
in accordance with the law (Order 46 Rule3).
IV. It may also refuse to answer the reference or even
quash it (Order 46 Rule 5).
V. The High Court, cannot however, make any decision on
the merits of the case nor can it make any suggestions.
(Municipal Corp. of city v Shivshanker Gaurishanker
AIR 1999).

When can a District Court interfere with a suit in its

subordinate court for making a reference to High
Court

According to Order 46 Rule 7(1), Where it appears to a

District Court that a Court subordinate thereto has, by
reason of erroneously holding a suit to be cognizable by a
Court of small Causes or not to be so cognizable, failed to
exercise a jurisdiction vested in it by law, or exercised a
jurisdiction not so vested, the District Court may, and if
required by a party shall, submit the record to the High
Court with a statement of its reasons for considering the
opinion of the subordinate Court with respect to the
nature of the suit to be erroneous.

14. Discuss the differences between Appellate and

Revisional jurisdiction of the High Court.
Give illustrations.

The following are the points of difference between an

appellate jurisdiction and revisional jurisdiction of a High Court:
I. Appeal is a statutory right given to the appellant which he can
demand from the court either on a question of fact or on a
question of law or upon both. In revision the applicant has no
statutory right beyond inviting the attention of the Court. The
Court has discretion to exercise its revisional power or not.
II. In appeal the High Court decides both on questions of law and
fact. In revision it only decides or adjudicates on a question of
law; but it may, for the ends of justice, enter into questions of
fact.
 III. In appeal save in an appeal for the enhancement of sentence,
the High Court cannot enhance the sentence, but in revision it
can.
IV. In appeal the High Court can convert an acquittal into
conviction and vice versa, but in revision it cannot convert a
finding of acquittal into one of conviction.
V. The power of a High Court in appeal is not as wide as that in
revision. In exercising its revisional jurisdiction the High Court
may even cause any irregularity or illegality but that is not so
in an appeal.
VI. In disposing of criminal appeal the Court will interfere unless
it is satisfied as to the guilt of the accused, while in revision
the High Court will not interfere unless the conscience of the
Court is aroused to such an extent as to compel it to say
expressly that the applicant ought not to have been convicted
on the evidence.
VII. The High Court cannot dismiss an appeal without affording the
appellant or his pleader a reasonable opportunity of being
heard. But in revision the High Court is not bound to hear the
applicant or his pleader save while enhancing any sentence the
accused shall be heard as of right.
VIII. In appeal the High Court cannot direct the tender of pardon,
but it can do so in the exercise of its revisional jurisdiction.

Case Law
The revisional jurisdiction of the High Court cannot be equated with
appellate jurisdiction. In its revisional jurisdiction, the High Court
can examine the records of any proceedings for satisfying itself as
to the correctness, legality or propriety of any finding, sentence or
order and the same was upheld by High Court of Delhi through the
learned bench led by JUSTICE ASHA MENON in the case
of RAJENDER SINGH THAKUR vs. STATE & ANR. [CRL.REV.P.
155/2022] on 22.03.2022.