APPEAL, REFERENCE,

REVIEW AND REVISION

-Nayanthika R

APPEALS

Not been defined in the Code.

judicial examination of the decision
by a higher court of the decision of an
inferior court
a right of entering a superior court
and invoking its aid and interposition to
redress an error of the court below.

Essentials of an Appeal

Decision:
Decision judgment of a court or the
ruling of an administrative body.
Aggrieved party:
party Often but not
necessarily, a party to the original
proceeding.
Reviewing body:
body ready and willing to
entertain appeal.

Righ of Appeal

Not natural or inherent right.

Expressly stated in statute.
Substantive right. (S.96) and not a matter of
procedure.
Vested right, exists from the date of
commencement of suit.
Governed by law at the date of institution of
suit and not the date of the judgment.

Provisions Governing Appeal

S.96,100,104 and 109 of the Code of Civil

Procedure confer the right of appeal on
aggrieved parties
S.96 to 99 and 107 read with O.41 deal with
first appeals.
The Limitation Act provides period for filing
appeals. An appeal against a decree or an
order can be filed in a High Court within 90
days and in any other court within 30 days
from the date of the decree or order
appealed against.

Section 96

Appeal shall lie from every decree passed by any

court exercising original jurisdiction to the court
authorised to hear appeals from decisions of such
court.
may lie from an original decree passed ex parte.
No appeal from decree passed by the court with
the consent of parties.
Appeal only on question of law when amount or
value of the subject matter of the original suit does
not exceed three thousand rupees.

Who May Appeal

Party to the suit who is aggrieved or adversely

affected by the decree or if such party is dead, his
legal representatives.
A person claiming under a party to the suit or a
transferee of the interests of such party, who so far
as such interest is concerned is bound by the decree,
provided his name is entered on the record of the
suit.
A guardian appointed by court in a suit by or against
minor.
Any other person, with the leave of the court, if he is
adversely affected by the decree.( i.e if the decision
of the original court acts as res judicata against him)

Who Cannot Appeal

Person who has waived his right by

valid agreement.
Clear and unambiguous.
Depends on facts and circumstances.
If party has accepted the benefits
under a decree then he is estopped
form appealing.

Against Ex-Parte Decree: S

96(2)

Remedy available to defendant

against whom an ex parte decree has
been passed.
Appellate Court allowed to go into
propriety or otherwise of the ex parte
decision.

Appeal Against Consent

Decree: S 96(3)

No appeal can lie against a consent decree.

Based broadly on principle of estoppel.
Based on the assumption that parties to an
action can, expressly or impliedly, waive or
forgo their right of appeal by any lawful
agreement and or compromise even by
conduct.
Consideration for the agreement is that both
sides give up their right to appeal.

One decree has been shown to be passed

with consent of the parties, S96(3) becomes
applicable and binding.
In case of partial compromise and
adjustment: decree is consent decree.
Does not apply where the factum of
compromise is in dispute or compromise
has been arrived at unlawfully.

Appeal in Petty Cases: Sec

96(4)

Inserted by Amendment of 1976.

Bars appeal on facts from decrees
passed in petty suits where the suit
value does not exceed Rs.10,000

Appeals: Preliminary and Final

Decree

An appeal lies against a preliminary

decree
Failure to appeal against a preliminary
decree precludes an aggrieved party
from challenging the final decree

Appeal Against Judgment

Code provides appeal from decree

and not judgment
Party may file appeal against
Judgment if a decree has not been
drawn up by the Court

Appeal Against Finding

Appeal against Decree or Appealable

Order only.
Explanation to Rule 22 of Order 41
enables respondent to file cross
objections against any finding
recorded against him irrespective of
the ultimate decree.

Appeal Against a Dead Person

No appeal against dead person.

Application for substitution of dead person
with legal representatives.
In this case, the appeal can be taken to
have been filed on the date of the
application for the substitution of the legal
representatives
If time barred, then the appellant can seek
condonation of such delay

Form of Appeal ( O.41 R.1)

1.
2.
3.
4.
5.
6.

The following requirements must be complied with:

It must be in the form of a memorandum setting forth the
grounds of objections to the decree appealed form
It must be signed by the appellant or his pleader
It must be presented to the Court or to such officer as it
appoints in that behalf
The memorandum must be accompanied by a certified copy
of the decree
Must be accompanied by a certified copy of the judgment,
unless the court dispenses with it
Where the appeal is against a money decree, the appellant
must deposit the decretal amount or furnish the security in
respect thereof as per the direction of the Court.

Memorandum of Appeal

The pleadings
The issues
The findings thereon
The judgment
The decree
When memorandum of appeal not in proper
form, the Court may reject it or return it to
the appellant for amendment. (Or.41 R.3)

Presentation of Appeal: Rules

9 & 10

Rule 9 states that the Court from

whose decree an appeal lies shall
entertain the memorandum of
appeal,shall make an endorsement
therein and shall register the appeal in
a register of appeals.

Condonation of Delay

Rule 3 A provides that where an

appeal has been presented after the
expiry of period of limitation, it shall be
accompanied by an application that
the applicant had sufficient cause for
not preferring the appeal within time.

Summary Dismissal: Rules 11

& 11A

Power of an appellate court to dismiss an appeal

summarily. This refers to a stage after the
memorandum of appeal has been filed and the
appeal has been registered under Rule 9.
The Court is empowered to reject the summarily if
prima facie there is no substance in it.
If the High Court dismissing the appeal is a court
other than a High Court it should record reasons for
doing so.
If the appeal is not dismissed summarily, a date is
fixed for hearing and notice of such hearing shall be
served upon the respondent with a copy of the
memorandum of the appeal.

Cross-Objections: Rule 22

i.

ii.

iii.

Where the suit is partly decided, and the aggrieved party

(either the plaintiff or defendant) files an appeal, the
opposite party may adopt the following:
He may prefer an appeal from that part of the decree which
is against him. Thus, there may be two appeals against the
same decree.They are knows as cross appeal.Both these
will be disposed of together.
He may not file an appeal against the part of the decree
passed against him but may take objection against the
same. Such objections are called cross objections
Without filing a cross-appeal or a cross objection, he may
support the decree (a) on the grounds decided in his favour
by the trial court (b) even on the grounds decided against
him.

Powers of Appellate Court: Sec

107, Rules 23-29 & 33, O.41

Final Determination: Sec 107(1)(a),

Rule 24
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.

1.
2.
3.

Remand: Sec 107 (1)(b), Rules 23 & 23 A

Directs the lower court to reopen and retry
the case. It can be ordered only if:
The suit must have been disposed of the
trial court on a preliminary point
The decree under appeal must have been
reversed.
Other grounds- When considered
necessary in the interests of justice.

Framing issues and referring them for

trial: Sec 107 (1)(c), Rules 25 and 26
Where the lower court has omitted (i)to
frame any issue (ii) to try any issue and (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.

Additional Evidence: Sec 107 (d), Rules

27-29
Empowers an appellate court to take
additional evidence. The party seeking such
admission be able to establish that with the
best efforts such additional evidence could
not have been adduced at the first instance.
The party affected should have an
opportunity to rebut. Also, such evidence
must be essential for the determination of
the issue.

Rule 27 lays down circumstances to admit

additional evidence:
Where the lower court has improperly
refused to admit evidence
Where such additional evidence was not
within the knowledge of the party
Where the appellate court requires such
evidence to enable it to pronounce judgment
and for any other substantial cause.

Modification of Decree: Rule 33, O.41

The appellate court may make any order it
thinks, by allowing or dismissing the appeal
and also to give such other relief. No hard
and fast rule can be laid down as to the
circumstances in which the power can be
exercised.

Other Power: Sec 107(2)

Other than the above mentioned
powers, an appellate court has the
same powers as an original court.
This is based on the principle that an
appeal is a continuation of the original
suit.

Duties of Appellate Court

To decide appeal finally

Not to interfere with decree for
technical errors
Appreciation of evidence
Recording of reasons (Rule 31)

Second Appeals

Sec 100 to 103, 107-108 and O.42

deals with second appeals.
The right of appeal has been confined
to cases where a question of law is
involved and such question is a
substantial one.

The term substantial question of law has not been

defined in the Code.
In Chunilal Mehta v. Century Spg & Mfg. Co. Ltd.,
the Court said it would be a substantial question if it
is of general public importance or if it directly and
substantially affects the rights of the parties or it is
not finally settled by the Court or is not free from
difficulty or calls for discussion of alternative views.
The substantial question need not be of general
importance. Ultimately, it depends on facts and
circumstances of each case.

No Second Appeal in Certain

Cases

No second appeal is maintainable except on

the grounds specified in the Code.
Likewise, no second appeal lies in any suit
where the subject matter of the original suit
for recovery of money does not exceed
25,000 Rs.
The memorandum of appeal should state
substantial question of law.

Appeal Against Orders

Sec 104 to 108 and O.43 deal with

appeals from orders. Only certain
orders are appealable.

REFERENCE

Sec. 113 of the Code of Civil

Procedure empowers a subordinate
court to refer a case for the opinion of
the High Court when the Court itself
feels some doubt about a question of
law.
It must be made before passing
judgment in the case

1.

2.

3.

Object: To avoid commission of error that cannot be

remedied later on, as in the case of non-appealable
orders.
Conditions to be satisfied:
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 such suit, appeal or
proceeding; and
The court trying the suit or appeal or executing the
decree must entertain a reasonable doubt on such
question


1.
2.

Questions of law on which a subordinate court may entertain

a doubt are two fold:
Relating to validity of any Act, Ordinance or Regulation;
Other questions
In the former case it is obligatory if the following are satisfied:

It is necessary to decide such question in order to

dispose of the case

The subordinate court is of the view that the impugned

Act, Ordinance or Regulation is ultra vires

There is no determination either by the SC or by the HC

to which such Court is subordinate that such Act,
Ordinance or Regulation is ultra vires.

Only a court can refer a case either on

application of a party or suo
motu.Court means Court of Civil
Judicature, not Tribunal or persona
designata

Power Of Referring Court

And High Court

No reference can be made unless the

question has actually arisen between the
parties litigating.
The jurisdiction of the High Court is
consultative
It is not only confined to the questions
referred, but can also answer a new aspect
of law if it arises.

The court may either pass a decree or stay the

proceedings contingent upon the decision of the
HC, which cannot be executed till receipt of a copy
of the judgment of the HC on the reference.
If the referring Court does not comply with the
conditions laid down for making reference, it has
the power to return the case for amendment
The High Court after hearing the parties, if they so
desire, shall decide the point so referred and
transmit a copy of its judgment to the Court which
shall dispose of the case in accordance with the
said decision .

REVIEW

Sec 114 gives a substantive right of review and

O.47 provides the procedure therein.
Exception to the general principle of functus officio
Review, in its judicial sense, means a judicial reexamination of the case by the same court and by
the same Judge
It is not the same as powers of an appellate court
which can correct all errors committed by the
subordinate court.
It is a concept borrowed from the courts of equity.

Who May Apply

A person aggrieved because a decision has
been wrongfully pronounced of something or
wrongfully refused him something or
wrongfully affected his title to something.
A third party cannot apply, who is neither a
party to the proceedings nor a decree or
order binds unless the decree or order
affects him


1.
2.

3.

A review petition is maintainable in the following circumstances:

Cases in which no appeal lies
Cases in which appeal lies but not preferred
Merely because an order is subject to appeal is no ground to
reject an application for review. But, if an appeal is already
instituted before making an application for review, the Court
cannot entertain such application. But if an application for
review is preferred first and then an appeal is filed, the
jurisdiction of the Court to deal with and decide the review
petition is not affected. If review is granted before dismissal of
the appeal the decree or order ceases to exist and the appeal
will not remain
Decisions on reference from Court of Small Causes

Grounds

Discovery of New Evidence

If the applicant discovers some new and important matter of
evidence, which, after exercise of due diligence, was not
within his knowledge or could not be produced by him at the
time when the decree was passed.
Such evidence must be (i) relevant; and (ii) of such a
character that if it had been given it might possibly have
altered the judgment
Rule 1, O.47 refers to evidence or other matter in the nature of
evidence and hence, review cannot be granted on the ground
of discovery of new points of law or authorities which show
that the decision was not correct.

Error Apparent on Record

No error can be an error apparent on the face of the record if it
is not self-evident and requires an examination or argument to
establish it. It should not be required to be established by a
long drawn-out process of reasoning on points where there
may be conceivably be two opinions
Examples: pronouncement of judgment without taking into
consideration the fact that the law was amended
retrospectively, without considering statutory provisions, on
the ground of omission to try a material issue in the case, or
on the ground that the court decides against a part on matters
not in issue.

Other Sufficient Reasons

This expression has not been defined
in the Code, but the Supreme Court
has held it to mean a reason sufficient
on grounds, at least analogous to
those specified in the rule

Review is reconsideration of the same

subject matter by the same Court and by the
same judge. If the same person is not
available, due to death or other such
unwarranted causes, his
Limitation- Thirty days from the date of the
decree or the order.
An order granting an application for review is
appealable, but an order rejecting an
application is not.

PROCEDURE AT HEARING
First Stage

Ordinarily commences with an ex parte application by the

aggrieved party. The court may reject it if there are no sufficient
grounds or may issue rule calling upon the opposite party to show
cause why review should not be granted
Second Stage
The application shall then be heard by the same court and same
judge unless he is no longer attached to the court. If the rule is
discharged, the case ends and the application will be rejected. If,
it is made absolute the application will be granted for rehearing of
the matter.
Third Stage
The matter will be reheard on merits by the Court either at once or
at any time fixed by it. After rehearing the court may either confirm
the original decree or vary it.

REVISION

Sec. 115 of the CPC empowers a HC to entertain a

revision in any case decided by any subordinate
Court in certain circumstances.
The High Court has to satisfy itself on three matters:

that the order of the subordinate Court is within jurisdiction

that the case is one in which the Court ought to exercise its
jurisdiction, and
that in exercising jurisdiction the court has not acted
illegally, that is, in breach of some provision of law, or with
material irregularity, that is, by committing some error of
procedure in the course of the trial which is material in that
it may have affected the ultimate decision

If it is satisfied then it has no power to

interfere because it differs, however
profoundly from the decision of the
subordinate court.
Sec. 115 only provides HC to see that the
proceedings of the subordinate courts are
conducted in accordance with law within the
bounds of their jurisdiction and in
furtherance of justice
It does not intended to allow the HC to
interfere and correct errors of fact or of law.

An application may be filed by a

person aggrieved by the order passed
by a Court subordinate to the High
Court. But it may even suo motu
exercise revisional jurisdiction under
Sec 115.

CONDITIONS
1.

A case must have been decided

In Major Khanna v. Brigadier Dillon it was
held that Sec. 115 applies even to
interlocutory orders. After the Amendment,
the explanation makes it clear that the
expression includes any order made, or
any order deciding an issue, in the course
of a suit or a proceeding.

2.

A subordinate court
The High Court cannot exercise revisional
jurisdiction unless the case is decided by a Court
and such Court is subordinate to the High Court. A
court means a court of civil judicature. Not any
person including any person acting in an
administrative capacity. If the intention is that the
prescribed officers should enforce the rights and
liabilities created by the statute in the exercise of the
existing jurisdiction of courts, they act as courts. If,
on the other hand, the intention is to create new
courts, they act as persona designata

3.

4.

No Appeal Lies
The revisional jurisdiction can be invoked in respect of any case in
which no appeal lies to the High Court. The word appeal includes
first appeal as well as second appeal.
Jurisdictional Error
Where there is no question of jurisdiction, the decision cannot be
corrected because a court has jurisdiction to decide wrongly as well
as rightly. When a subordinate court exercises jurisdiction not
vested in it by law, or where subordinate court has failed to exercise
jurisdiction vested in it by law the HC can interfere by revision.
A revision also lies where the court has exercised its jurisdiction
illegally or with material irregularity. These words have been defined
by the Court in Keshardeo v. Radha Kissen: The errors
contemplated relate to material defects of procedure ad not to
errors of either law or fact after the formalities which the law
prescribes have been complied with

It is to be remembered however that the exercise of

revisional jurisdiction is discretionary and the HC is
not bound to interfere merely because the conditions
laid down in clause (a), (b) or (c ) of Sec. 115 are
satisfied.
The proviso to sub-section(1) of Sec. 115 states that
the High Court shall not, 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.

Sec 2 provides that 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.
Sub section (3)inserted by the Amendment Act clarifies that
mere filing of revision would not operate as stay of suit or
other proceedings unless such stay is granted by the High
Court.
The period of limitation is 90 days from the decree or order
sought to be revised.
The exercise of power can be suo motu or on a prayer made
by a party. A person other than a party can also bring illegality
or irregularity to the notice of the High Court.