Sec.113-115, 151-153, 144
Sec.113-115, 151-153, 144
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.
• The subordinate court is of the view that the impugned Act, Ordinance,
or Regulation is ultra virus. And
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
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.
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.
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.
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.
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—
• REVISION 115
• 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:-
Conditions
• 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—
• 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.
• 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)
• (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.
• 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
• 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.
• 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
• 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.
• 1. to restore a suit dismissed for default for non payment of court fees
u/o. 7 R.11.
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.
Object
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.