• REFERENCE

• SECTION 113 & ORDER XLVI

A reference to the High Court by a subordinate Judge under the

provisions of Section 113 and Order XLVI, Rule I of the Code of Civil
Procedure, should be made only when the presiding Judge entertains a
reasonable doubt on the point of law or usage having the force of law
referred, and not merely on the importunity of pleaders.
Section 113. Reference to High Court

  Subject to such conditions and limitations as6 may be prescribed, any

court may state a case and refer the same for the opinion of the High
Court, and the High Court may make such order thereon as it thinks
fit:

Provided that where the court is satisfied that a case pending

before it involves a question as to the validity of any Act, Ordinance
or Regulation or of any provision contained in an Act, Ordinance or
Regulation, the determination of which is necessary for the disposal of
the case, and is of opinion that such Act, Ordinance, Regulation or
provision is invalid or inoperative, but has not been so declared by
the High Court to which that Court is subordinate or by the Supreme
Court, the Court shall state a case setting out its opinion and the
reasons therefore, and refer the same for the opinion of the High
Court.

Explanation: In this section, “Regulation” means any Regulation of

Bengal, Bombay or Madras Code of Regulation as defined in the General
Clauses Act, 1897 (10 of 1897), or in the General Clauses Act of a State.
 • (b) A proviso has been added to Section 113 of the Code by the Codes
of Civil Procedure and Criminal Procedure (Amendment) Act, 1951 (No.
XXIV of 1951).

A reference can be made under this section only when the court has
doubts on the question. The right of reference is subject to the conditions
prescribed under the code and unless they are fulfilled, the H.C cannot
entertain a reference from a subordinate court. That is,

• 1. Question of law.

• 2. so far as the cases falling under the category of “other question” is

concerned, the reference is optional.

It is necessary to decide such question in order to dispose of the cases.

• The subordinate court is of the view that the impugned Act, Ordinance,
or Regulation is ultra virus. And

• There is determination either by the S.C or H.C to which such Court is

subordinate.

Now where a Court finds that it is necessary for the disposal of a

case to decide a question about the validity of any Act, Ordinance or
Regulation and the Court is of the opinion that the Act, Ordinance of
Regulation is invalid or inoperative but has not been so declared by
the High Court of that State or by the Supreme Court, the Court shall
refer the matter in the manner laid down for the opinion of the High
Court.

The object is to avoid the commission of any error which cannot be

remedied at a later stage and enable the question as to the validity of Act,
Ordinance or Regulations to be decided speedily by the highest forum.
 They apply only when the question raised is necessary for the
determination of and directly bears on the merits of the case.

In Gee Varghese Geroge Vs K.P.Abraham, AIR 1979 Ker 259, it was held
that for reference under section 113, a decision of the constitutional issues
must be necessary for the disposal of the case.

Only a court can refer a case to the High Court either suo moto or an
application by a party to the case.

Order 46

1. Reference of question to High Court.- Where, before or on the

hearing of a suit or an appeal in which the decree is not subject to
appeal, or where, in the execution of any such decree, any question of law
or usage having the force of law arises, on which the court trying the
suit or appeal, or executing the decree, entertains reasonable doubt,
the court may, either of its own motion or on the application of any of the
parties, draw up a statement of the facts of the case and the point on which
doubt is entertained, and refer such statement with its own opinion on
the point for the decision of the High Court.

This rule does not authorise a reference to the high court except in a suit
or appeal in which the decree is not subject to appeal. Therefore, no
reference can be made to the High court in a matter in which an appeal lies.
In appealable cases, a remedy to correct a possible error is provided by the
appeal.

Unless the court is satisfied that the determination of the question is

necessary for the disposal of the case, the court need not make a reference.

“Reasonable doubt” —A reference under this rule can be made when

a judge entertains a reasonable doubt on a question of law or usage.
subordinate Court cannot be supposed to entertain a reasonable doubt
on a point of law if it has been decided clearly in a ruling of the High
Court, unless some doubt has been thrown on the correctness of the same
by a ruling of the Supreme Court.

2. Court may pass decree contingent upon decision of High

Court.- The court may either stay the proceedings or proceed in the
case notwithstanding such reference, and may pass a decree or make an
order contingent upon the decision of the High Court on the point
referred; but no decree or order shall be executed in any case in which
such reference is made until the receipt of a copy of the judgment of the
High Court upon the reference.

The jurisdiction if the HC is neither original nor appellate. But only

consultative subject to the condition and limitations laid down in this code.

The High Court, after hearing, the parties if they appear and desire to be
heard, shall decide the point so referred, and shall transmit a copy of
its judgment, under the signature of the Registrar, to the court by which
the reference was made; and such court shall, on the receipt thereof,
proceed to dispose of the case in conformity with the decision of the
High Court. – Rule 3.

Where a case is referred to the High Court under rule 1 or under the
proviso to section 113, the High Court may return the case for
amendment, and may alter, cancel or set aside any decree or order
which the court making the reference has passed or made in the case
out of which the reference arose, and make such order as it thinks fit – Rule
5.

4A. Reference to High Court under proviso to section 113.- The

provisions of rules 2, 3 and 4 shall apply to any reference by the court
under the proviso to section 113 as they apply to a reference under
rule 1.

• SECTION 114: REVIEW

Review literally and even judicially means re-examination or re-

consideration of its own decision by the very same court. Basic
philosophy inherent in it is the universal acceptance of human fallibility.

An application for review may be necessitated by way of invoking the

doctrine ‘actus curiae neminem gravabit’ which means an act of the
court shall prejudice no man. The other maxim is, ‘lex non cogit ad
impossibillia’ which means the law does not compel a man to do that
what he cannot possibly perform.

Section 114 of the Code of Civil Procedure provides for a substantive

power of review by a civil court and consequently by the appellate courts.
Section 114 of the code although does not prescribe any limitation on
the power of the court but such limitations have been provided for in
Order 47, Rule 1 of the CPC.

Section 114: Review

Subject as aforesaid, any person considering himself aggrieved- by

a decree or order from which an appeal is allowed by this Code, but
from which no appeal has been preferred, by a decree or order from
which no appeal is allowed by this Court, or by a decision on a
reference from a Court of Small Causes, may apply for a review of
judgment to the Court which passed the decree or made the order,
and the Court may make such order thereon as it thinks fit.

So the circumstances when review lies are

(a) Cases in which appeal lies but not preferred, 

 (b) Cases in which no appeal lies, 

(c) Decisions on reference from Court of Small Causes; and

the grounds are
(i) discovery of new and important matter or evidence, or 

(ii) mistake or error apparent on the face of the record, or 

(iii) any other sufficient reason.

• Scope of an application for review is much more restricted than that of

an appeal.

The Supreme Court in Lily Thomas vs. Union of India, AIR 2000
SC 1650 held that the power of review can only be exercised for
correction of a mistake and not to substitute a view and that the
power of review could only be exercised within the limits of the
statute dealing with the exercise of such power. The review
cannot be treated like an appeal in disguise. The mere possibility
of two views on the subject is not a ground for review. Once a
review petition is dismissed no further petition of review can be
entertained.

For review an application has to be made by the aggrieved party.

Where an appeal has been preferred a review application does not lie. But an
appeal may be filed after an application for review. In such event the
hearing of the appeal will have to be stayed. If the review succeeds the
appeal becomes infructuous.

The provisions of Order 47 of the code do not apply to writ petitions filed
in a High Court under Article 226 of the Constitution.  However, there are
definitive limits to the exercise of the power of review by the High Courts.
 In Gujarat University vs. Sonal P. Shah, AIR 1982 Guj 58, the Apex
Court HELD as follows:-

• (1) The provisions of the Civil Procedure Code in Order 47 are not
applicable to the High Court’s power of review in proceedings under
Article 226 of the Constitution,

(2) The said powers are to be exercised by the High Court only to
prevent miscarriage of justice or to correct grave and palpable
errors.

•  (3) The inherent powers, though ex facie plenary, are not to be

treated as unlimited or unabridged, but they are to be invoked on the
grounds analogous to the grounds mentioned in Order 47, Rule 1;
namely:
(i) discovery of new evidence, 

• (ii) existence of some mistake/error, 

• (iii) analogous ground.

Power of S.C ON Review;

• Article 137 of the Constitution confers power on the Supreme Court to

review its judgments subject to the provisions of any law made by
Parliament or the Rules made under clause (c) of Article 145. The
power of the Supreme Court, therefore, cannot be curtailed by the
Code of Civil Procedure.

ORDER 47 R.4

• (1) Where it appears to the Court that there is not sufficient ground for
a review, it shall reject the application.
• (2) Application where granted—Where the Court is of opinion that the
application for review should be granted, it shall grant the same:

• Provided that—

• (a) no such application shall be granted without previous notice to

the opposite party, to enable him to appear and be heard in support
of the decree or order, a review of which is applied for; and

• (b) no such application shall be granted on the ground of discovery

of new matter or evidence which the applicant alleges was not
within his knowledge, or could not be adduced by him when the
decree or order was passed or made, without strict proof of
such allegation.

• REVISION 115

• Revision means – The action of revising especially critical or careful

examination on perusal with a view to correcting or improving.

• Sec.115 vests in all High Courts, what is called revisional jurisdiction.

• It provides that “The High Court may call for the record of any
case which has been decide by any court subordinate to such
High Court and in which no appeal lies, to satisfy on 3 aspects that:-

• 1. The order passed by the sub-court is within its jurisdiction.

• 2. The case is one, in which the court ought to exercise jurisdiction

and

• 3. In exercising jurisdiction, the court has not acted legally – (Johir

singh Vs Sukh pal Singh AIR 1989 SC 2073).

OBJECT: AIR 1970 SC 406

 • The primary object of this section is to prevent the subordinate courts
from acting arbitrarily, capriciously and illegally or irregularly in
exercise of their jurisdiction.

• It cloths the HC with power necessary to see that the proceeding of

the subordinate courts are conducted in accordance with the law within
the bounds of their jurisdiction and in furtherance of justice.
(Baldevdas Shiv Lal Vs Filmistan Distributors india (P) Ltd.

When it can be invoked?

• In cases where the subordinate court has exercised jurisdiction not

vested in it by law or has failed to exercise the jurisdiction vested in it,
or has acted in exercise of its jurisdiction illegally or with material
irregularity, then the jurisdiction of the HC can be properly invoked – (
Manick Chandra Nandy Vs Debdas Nandy AIR 1986 SC 446).

• If there is no question jurisdiction, the decision cannot be corrected by

the HC in exercise of Revisional Jurisdiction.

Revisional jurisdiction: nature

• The revisional power conferred by this section is limited to keep the

subordinate with in the bounds of their jurisdiction and it is
concerned with jurisdiction and jurisdiction alone involving a
refusal to exercise jurisdiction where one exists, exercise of
jurisdiction where none exits and finally acting with illegality or
material irregularity.

Conditions

• A case must have been decided

• The court which has decided the case must be a court subordinate to
HC

• The order should not be appealable one; and

• The subordinate court must have (i) exercised jurisdiction not vested
in it by law (ii) failed to exercise jurisdiction vested in it by law (iii)
acted in exercise of jurisdiction illegally or with material irregularity.

• 115. Revision

•  (1) The High Court may call for the record of any case which
has been decide by any court subordinate to such High Court
and in which no appeal lies thereto, and if such subordinate court
appears—

• (a) to have exercised a jurisdiction not vested in it by law, or

• (b) to have failed to exercise a jurisdiction so vested, or

• (c) to have acted in the exercise of its jurisdiction illegally or

with material irregularity, the High Court may make such order in
the case as it thinks fit:—

• Provided that the High Court shall not, under this section, vary or
reverse any order made, or any order deciding an issue, in the course
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.

• Cl.(b) failed to exercise a jurisdiction so vested:

• Refusal to accept a plaint, application

• Refusal to a decree or to review its own judgment – in these cases the
HC will interfere.

• (Cl.(c))acted in the exercise of its jurisdiction illegally or with

material irregularity:

• The word illegally or material irregularity has not been defined in the
code. The error contemplated by this provision relates to material
defects of procedure. (AIR 1953 SC 23)

• Such error may relate to the breach of some provisions of law or to

material defects of some procedure affecting the ultimate decision.
DLF Housing & Construction Co (P) Ltd Vs Sarup Singh AIR 1971 SC
2324)

• Amir Hassan Khan Vs Sheo Prakash Singh

• Decides what is not an illegality or material irregularity.

• The word “acted in the exercise of its jurisdiction illegally or

with material irregularity” refers only to an “error of jurisdiction”.
ALL HC.

• The words refers to “error of procedure” only as distinguished from

errors of law – Mad HC.

• The words apply to cases where the decision complained of is vitiated

by a gross and palpable error - Mad HC.

• (2) The High Court shall not, under this section vary or reverse
any decree or order against which an appeal lies either to the
High Court or to any court subordinate thereto.
• (3) 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.

• Explanation .- In this section, the expression “any case which has been
decided” includes any order made, or any order deciding an issue, in
the course of a Suit or other proceeding.

• Whether the court will exercise the power or not that is with in the
discretion of the court.

• However in a proper case where the order of a subordinate court is

perverse or beyond jurisdiction, the court should exercise jurisdiction
u/A 227 of the Constitution.

• Powers u/Sec 115 and Article 227 is quite distinct and different and
are not inter changeable. Thus where the remedy is available u/s 115,
then the court should not exercise the power u/A227 unless it is an
exceptional cases.

• RESTITUTION SEC.144

• The term “restitution” has not been defined in the Code.

• It is an act of restoring a thing to its proper owner.

• In other words, restitution means “restoring to a party the benefit

which the other party has received under a decree subsequently held
to be wrong”.

• It is an action of restoring a person or persons to a previous status or

position the fact of being restored and reinstated.

• In Halsbury’s Laws of England, it is stated, “Any civilized system of

law is bound to provide remedies for cases of what has been
 called unjust enrichment or unjust benefit, that is, to prevent a
man from retaining the money of, or some benefit derived
from, another which it is against conscience that he should
keep”.

• The principle of restitution has been statutorily recognised in section

144 of the C.P.C. 

144. Application for restitution

Where and in so far as a decree or an order is varied or reversed in

any appeal, revision or other proceeding or is set aside or modified
in any suit instituted for the purpose, the court which passed the
decree or order shall, on the application of any party entitled to any
benefit by way of restitution or otherwise, cause such restitution to be
made as well, so far as may be, place the parties in the position which
they would have occupied but for such decree or order or such part
thereof as has been varied, reversed, set aside or modified and, for this
purpose, the court may make any orders, including orders for the
refund of costs and for the payment of interest, damages,
compensation and mesne profits, which are property consequential
on such variation; reversal, setting aside or modification of the decree of
the decree or order.

• The doctrine is based upon the maxim “actus curiae neminem

gravabit” – that is “the act of the court must not harm no one”.

• The object is that – to provide for dealing with an unjust

enrichment where ever justice demands it.

• The jurisdiction to make restitution is inherent in every court

and can be exercised whenever justice of the case demands.
• The power of a court to grant restitution is not confined to the cases
covered by the provisions of this section. It extends also to cases
which do not come strictly within s 144. Under s 151 courts has
inherent power to order restitution irrespective of s 144. hence
restitution can be ordered u/s 151 where section 144 does not
apply.

• in Rodger v. Comptoir descompte de Paris (1871) LR 3 PC 456

“One of the first and highest duties of all courts is to take care that the
act of the court does no injury to any of the suitors and when the
expression, the act of the court is used, it does not mean merely the
act of the primary court, or of any intermediate court of appeal, but
the act of the court as a whole from the lowest court which entertains
jurisdiction over the matter up to the highest court which finally
disposes case.”

• In S. Prabhavathi vs Rohini Kilaru And Anr.,

• The Supreme Court while observing that s 144 of CPC incorporates

only a part of the general law of restitution and not exhaustive, laid
down as under:

• “The jurisdiction to make restitution is inherent in every court

and will be exercised whenever the justice of the case
demands. It will be exercised under inherent powers where the
case did not strictly fall within the ambit of Section 144,
Section 144 opens with the words "where and in so far as a
decree or an order is varied or reversed in any appeal, revision
or other proceeding or is set aside or modified in any suit
instituted for the purpose...."

• ILLUSTRATION
• A obtains a decree against B for possession of immovable of property.
The decree is subsequently reversed in appeal. B is entitled on an
application u/this section to restitution of the property, though there
may be no direction for restitution in the decree of the appellate
court.

• A obtains a decree against B for Rs.5000/- and recovers the amount in

execution. The decree is subsequently reversed in appeal. B is entitled
to refund of the money together with interest upto the date of
repayment, though the appellate decree may be silent as to the
interest.

• In south eastern coal fields ltd Vs S.of.M.P air 2003 sc 4482 R.C
Lahoti said that “section 144 is not the fountain source of restitution; it
is rather a statutory recognition of a pre existing rule of justice, equity
and fair play. That is why it is often held that even away from
sec.144the court has inherent jurisdiction to order restitution so as to
do complete justice between the parties”.
 SECTION 151: SAVING OF INHERENT POWERS OF COURT

Nothing in this Code shall be deemed to limit or otherwise affect the

inherent power of the Court to make such orders as may be necessary
for the ends of justice or to prevent abuse of the process of the Court –
Section 151.

The word “Inherent” is very wide in itself. It means existing and

inseperable from something. A permanent attribute or quality, an essential
element, something intrinsic, or essential, vested in or attached to a person
or office as a right of privilege. Hence, inherent powers are such powers
which are inalienable from courts and may be exercised by a court to do full
and complete justice between the parties before it.

`The C.P.C is not exhaustive as the legislature is incapable of contemplating

all the possible eventualities that may arise in future litigation. Courts are
constituted for administering justice between the parties and therefore must
be deemed to possess, as a corollary, all such powers as may be necessary
to do the right and unto do the wrong in the course of administration of
justice.

`In Manoharlal Vs Seth Hiralal, AIR 1962 SC 527 – The SC held

that “The inherent powers has not been conferred on the court; it is a
power inherent in the court by virtue of its duty to do justice
between the parties before it”.

When it can be exercised?

• In the cases where the C.P.C does not deal with, the Court will
exercise its inherent power to do justice.

If there are specific provision of the C.P.C dealing with the specific
issue and they expressly or by basic implication, then the inherent powers
 of the Court cannot be invoked as inherent powers. The section confers
on the judges to make such orders that may be necessary to make
justice achievable. The Power can be invoked to support the
provisions of the code but not to override or evade other express
provisions as C.P.C. is the basic law which governs the functioning of
the courts.

In Ram Chand and Sons Sugar Mills v. Kanhayalal [1961] 1 S.C.R.

884: the SC held that “the Court would not exercise its inherent power
under S.151 CPC if it was inconsistent with the powers expressly or
impliedly conferred by other provisions of Code. It had opined that the
Court had an undoubted power to make a suitable order to prevent the
abuse of the process of the Court.

The court has no jurisdiction in the following cases:

• 1. to restore a suit dismissed for default for non payment of court fees
u/o. 7 R.11.

• 2. to reconsider or review an order.

• 3. to set aside an exparte decree.

When it can be invoked?

The inherent powers conferred under this section can be exercised only
for the furtherance of justice, that is, that the code is designed to achieve or
to prevent the abuse of the process of the court. Further, it can be invoked
only when there is no clear provision in the code.

Ex: to order joint trial of suits.

When it cannot be invoked?

 • When there is a clear cut provision, it cannot be used. It must be
exercised subject to the rule that if the Code does contain specific
provisions that would meet the necessities of the case in question,
such provisions should be followed and the inherent
powers/jurisdiction should not be invoked – {Arumugam Chettiar Vs
KRS Sevugan Chettiar AIR 1950 Mad 779}.

Ex: to set aside an ex parte decree.

• To restore a suit dismissed for default

• To reconsider or review an order

SECTION 152: AMENDMENT OF JUDGMENTS, DECREES OR ORDERS.

Clerical or arithmetical mistakes in judgments, decrees or orders

or errors arising therein from any accidental slip or omission may at
any time be corrected by the Court either of its own motion or on the
application of any of the parties.

This provision can be used to provide a remedy in cases of casual

omission or negligence by the ministerial staff of the court in preparing the
records or even by the court and to give effect to the meaning and intention
of the court.

Object

The object behind allowing the amendment of judgments, decrees or

orders under this section is to provide a remedy in cases of casual
omission or negligence by the ministerial staff of a court in preparing the
records or even by the court and to give effect to the meaning and intention
of the court. Because the act of court must not prejudice a party and it is the
duty of the courts to see that their records are true and represent the
correct state of affairs.
 • The mistake must be patent and apparent on the face of the
record and not latent errors whose discovery depends on elaborate
arguments on question of law and fact.

SECTION 153: GENERAL POWER TO AMEND

The Court may at any time and on such terms as to costs or otherwise
as it may think fit, amend any defect or error in any proceeding in a
suit, and all necessary amendments shall be made for the purpose of
determining the real question or issue raised by or depending on such
proceeding.

This section confers “general” power on the court to amend any defect
or error in any proceeding in a suit and to make “all necessary
amendments” for the purpose of determining the real question or
issue raised by the parties.

Order 6 Rule 17 & Section 152 has to analysed

SECTION 153-A POWER TO AMEND DECREE OR ORDER WHERE

APPEAL IS SUMMARILY DISMISSED

Where an Appellate Court dismisses an appeal under rule 11 of Order XLI,

the power of the Court to amend, under section 152, the decree or
order appealed against may be exercised by the Court which had passed
the decree or order in the first instance, notwithstanding that the
dismissal of the appeal has the effect of confirming the decree or order, as
the case may be, passed by the Court of first instance.] – 1976 amendment.