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IMS UNISON UNIVERSITY

ASSIGNMENT OF CODE OF CIVIL PROCEDURE

ON

APPEAL, REVISION AND REVIEW

(2015)

SUBMITTED TO: SUBMITTED BY:

PROF. SHALINI SAENA VISHA!A PUNDEER

1"LLBO2#

LLB (HONS) 5THSEM

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DECLARATION

I, V$%&'' P*+-, Enrolment No 1"LLB02#, pursuing LLB (H) from IMS UNISON

UNIVERSITY confirms that this work submitted for assessment is my own and is expressed in

my own words. Any uses made within it of the works of any other author or authors in any form

are properly acknowledged at the point of their use. A full list of the reference employed has

been included.

Vishaka undeer

1!""#$%&

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AC!NOWELGMENT

It is my pri'ilege to carry on this research under the guidance of M%. S&'$*$ S'/*' (A%%$%'*

-3%%-)4 I con'ey my deep sense of gratitude indebtedness for her continuous support,

encouragement and guidance during the course of this study and in the preparation of the

manuscript of this assignment. I am thankful for her insightful suggestions and continuous

guidance.

Vishaka undeer

1!""#$%&

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(A) FIRST APPEALS

MEANING

(he expression )appeal* has not been defined in the +ode. According to dictionary meaning ,

)appeal* is the )udicial examination of the decision by a higher court to ha'e the decision of an

inferior court*.1

-tated simply, appeal is a proceeding by which the defeated party approaches a higher authority

or court to ha'e the decision of a lower court or authority re'ersed.

OBECT

(o identify the irregularity in the decision of inferior court

ESSENTIALS

E'ery appeal has three essential elements

A decision /usually a udgment of a court or the ruling of an administrati'e authority0.

A person aggrie'ed /who is often, though not necessarily, a party to the original

proceeding0 and A re'iewing body ready and willing to entertain an appeal.

RIGHT OF APPEAL

A right of appeal is not an inherent or a natural right. It is well settled that an appeal is a creature

of a statute and there is no right of appeal unless it is gi'en clearly and expressly by a statute.

2hereas sometimes an appeal is a matter of right, sometimes it depends upon the discretion of

the court to which such appeal lies. In latter category of cases, the right is to apply to the court to

grant lea'e to file an appeal for instance, an appeal to -upreme +ourt under Article 1!3 of the

+onstitution of India. If a particular Act does not pro'ide a right of appeal, it cannot be declared

ultra 'ires only on that ground.

1 +hamber*s %1st 4ictionary /155&0 at p. 65

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In 8AN8A #AI '. VI9A: ;<=A>

(he -+ held that a person has an inherent power to file a suit whereas in appeal discreation of

the court matter.

FIRST APPEAL AND SECOND APPEAL

A first appeal lies against a decree passed by a court exercising original urisdiction, a second

appeal lies against a decree passed by the first appellate court. 2hereas a first appeal can be filed

in a superior court which may or may not be a high court. A first appeal is maintainable on a

?uestion of fact, or on a ?uestion of law, or on a mixed ?uestion of fact and law. A second appeal

can be filed only on a substantial ?uestion of law. No second appeal lies if the amount does not

exceed !$$$ >s. No "etters atent Appeal is maintainable against a )udgment* rendered by a

single udge of @igh +ourt to a 4i'ision #ench of the same court either in irst appeal or in

-econd appeal.

WHO MAY APPEAL

arty to the suit ad'ersely affected by the decree passed.

Any of the representati'es of the party ad'ersely affected by the decree passed.

Any other person with lea'e of the court can file an appeal.

WHO CANNOT APPEAL

arty who has wai'ed his right to appeal.

arty who has accepted the benefits under a decree of court can be stopped from

?uestioning the legality of the decree. (he 'ested right of appeal is destroyed if the court to which an appeal lies is abolished

altogether without any forum being substituted in its place.

SECTION 67

-ec 53 of the code confers a right of appeal. It reads as under

/10 -a'e where otherwise expressly pro'ided in the body of this +ode, or by any other

law for the time being in force, an appeal shall lie from e'ery decree passed by any

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other court exercising original urisdiction to the court authoriBed to hear appeals

from decision of such court./%0 An appeal may lie from an original decree passed ex parte.

/!0 No appeal shall lie from a decree passed by the court with the consent of parties.

/70 No appeal shall lie, except on a ?uestion of law, from a decree in any suit of the

nature cogniBable by +ourts of -mall +auses, when the amount or 'alue of the

subectC matter of the original suit does not exceed three thousand rupees.

According to section 53 an appeal can be filed against an ex parte decree%. #ut no appeal lies

against a consent decree!. E'en there is no appeal for the petty cases. 7 Appeal against a

preliminary decree can be filed.6 urther no appeal can be filed against a final decree where no

appeal against preliminary decree.3 No appeal against a udgment can be filed.&

FORM OF APPEAL: ORDER 81

In order that an appeal may be said to be 'alidly presented, the following re?uirements must be

complied with

><"E 1

It must be in the form of a memorandum setting forth the grounds of obections to the

decree appealed from.

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.

(he memorandum must be accompanied by a certified copy of the decree.

It must be accompanied by a certified copy of the udgment, unless the court dispenses

with it and 2here the appeal is against a money decree, the appellant must deposit the decrial

amount or furnish the security in respect thereof as per the direction of the court.

% -ec 53/%0 +ode of +i'il rocedure, 15$D

! -ec 53/!0 +ode of +i'il rocedure, 15$D

7 -ec 53/70 +ode of +i'il rocedure, 15$D

6 -ec5& +ode +i'il rocedure,15$D

3 -ec 5& +ode of +i'il rocedure, 15$D

& r 71 >1/10 +ode of +i'il rocedure,15$D

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><"E %

It precludes the appellant to urge, except with the lea'e of the court, any grounds of obection not

set forth in the memorandum of appeal.

><"E !

A memorandum of appeal should be prepared after carefully considering

the pleadings

the issues

the findings

the udgment

the decree

2here the memorandum of appeal is not in a proper form, the court may reect it or return it to

the appellant for the purpose of being amended.

><"E 7

It pro'ide that where a decree proceeds upon a ground common to all the plaintiffs or defendants,

any one of the plaintiffs or defendants may appeal from the whole decree, and thereupon the

appellate court can re'erse or 'ary the decree in fa'or of all the plaintiffs or the defendants as the

case may be.

LIMITATION

(he +ode of +i'il rocedure, 15$D confers a right to appeal, but does not prescribes a period of

limitation for filing an appeal. (he "imitation Act 153!, howe'er, pro'ides the period for filing

appeals. It states that an appeal against a decree or order can be filed in a @igh +ourt within

ninety days and in any other court within thirty days from the date of decree or order appealed

against.D

(B) SECOND APPEALS

D Art 113 of (he "imitation Act,153!

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-ection 1$$ F 1$!, 1$& C1$D and rder 7% deals with second appeals.

S. 100 allows filing of second appeals in the @igh +ourt, if the @igh +ourt is satisfied that )the

case in'ol'es a substantial ?uestion of law* but not on any other ground.

NATURE AND SCOPE

-ec 1$$ of the +ode as amended by the Amendment Act of 15&3 declares that an appeal shall lie

to the @igh +ourt from e'ery decree passed in appeal by any court subordinate to the @igh +ourt

if @igh +ourt is satisfied that the case in'ol'es a substantial ?uestion of law.

After the amendment of sec 1$$ the scope of second appeal was defined as follows

(he @igh +ourt must be satisfied that the case in'ol'es a substantial ?uestion of law.

(he memorandum of appeal must precisely state such ?uestion.

(he @igh +ourt at the time of admitting the appeal should formulate such ?uestions.

(he appeal shall be heard only on that ?uestion.

At hearing of the appeal, the respondent can argue that the case does not in'ol'e such

?uestion. (he @igh +ourt is, howe'er, empowered to hear the second appeal on any other

substantial ?uestion of law, not formulated by it, if it is satisfied that the appeal in'ol'es

such ?uestions. (he @igh +ourt, howe'er, has to record reasons for doing so.

SUBSTANTIAL 9UESTION OF LAW

(he legislature has not defined substantial ?uestion of law though the expression has not been

used in the +onstitution as well as in other statutes. (he phrase, howe'er, cannot be confined to a

straitacket and no rule of uni'ersal application can be formulated as to when it can be said that a

substantial ?uestion of law has arisen.

No second appeal in any suit where the subect matter of the original suit for reco'ery of money

does not exceed twenty fi'e thousand rupees.

LIMITATION

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A second appeal lies to a @igh +ourt within a period of ninety days from the date of decree

appealed against.

GENERAL PRINCIPLE

A second appeal lies in the @igh +ourt.

-uch an appeal is maintainable only on a substantial ?uestion of law alone.

An appeal lies also against the ex parte decree.

No second appeal lies except on the ground mentioned under sec 1$$.

(he memorandum of second appeal must state substantial ?uestion of law.

(he @igh +ourt should formulate a substantial ?uestion of law.

(he appeal will be heard only on such ?uestion.

@igh +ourt can also decide an issue of fact.

rocedure at the hearing will be the same as that of the first appeal.

No letters patent appeal lies against the decision in the second appeal

(C)APPEALS FROM ORDERS

-ection 1$7 to 1$D and rder 7! deals with appeals from orders. (hey state that certain orders

are appealable. No appeal lies against other orders.

MEANING

rder has been defined as the )formal expression of any decision of ci'il court which is not a

decree*.5 (hus an adudication of a court which does not fall within decree is an order.

NATURE AND SCOPE

(hey state that certain orders are appealable. No appeal lies against other orders. 1$

APPEALABLE ORDERS: SECTION 108, ORDER 8"

An order refusing lea'e to institute a suit against a public nuisance.

An order refusing lea'e to institute a suit in case of breach of trust .

5 - % /70

1$ - 1$7 /10

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An order returning a plaint to be presented to the proper court.

An order refusing to set aside the abatement or dismissal of a suit.

An order granting or refusing to grant interim inunction.

An order for the appointment of recei'er.

An order for attachment and sale of property of defaulting recei'er. An order refusing to restore an appeal dismissed for default of appearance by appellant.

An order setting aside or refusing to set aside a sale.

An order gi'ing or refusing to gi'e lea'e to continue a suit by or against an assignee etc.

LIMITATION

An appeal from an order can be filed in a @igh +ourt within ninety days and in another court

within thirty days from the date of order.

PROCEDURE AT HEARING

(he pro'ision relating to first appeal shall apply from order also.

(D) APPEALS TO SUPREME COURT

Appeals to the -upreme +ourt are go'erned by the pro'isions of Art 1!%, 1!! and 1!7CA of the

+onstitution of India with regard to ci'il matters. -ubect to the pro'isions of the +onstitution,

an appeal shall lie to the -upreme +ourt from any udgment, decree or final order in a ci'il

proceeding of a @igh +ourt, if the @igh +ourt certifies thatC

• (he case in'ol'es substantial ?uestion of law of general importance

• In the opinion of the @igh +ourt the said ?uestion needs to be decided by the -upreme

+ourt.11

-ection 1$5 and 11% read with rder 76 deals with appeals to the -upreme +ourt.

CONDITIONS: SEC 106, ORDER 85 RULE "

An appeal would lie to the -upreme +ourt under sec 1$5 of the +ode only if the following

conditions are fulfilled

• a udgment, decree or final order must ha'e been passed by the @igh +ourt.

11 -s 1$5 G 11%

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• a substantial ?uestion of law general importance must ha'e been in'ol'ed in the case.

• in the opinion of the @igh +ourt, the said ?uestion needs to be decided by the -upreme

+ourt.

APPEALS UNDER CONSTITUTION

'er and abo'e Art 1!%, 1!! and 1!7CA, Art 1!3 of the +onstitution confers 'ery wide and

plenary powers on the -upreme +ourt to grant special lea'e to appeal from any udgment,

decree, determination, sentence or order passed by any court or tribunal. -ection 11% of the +ode

sa'es the power conferred on the -upreme +ourt by the +onstitution and declares that nothing in

the +ode of +i'il rocedure would affect these powers.

REVIEW: ORDER LVII

GENERAL

-ection 117 of the code gi'es a substantial right of re'iew in certain circumstances and rder 7&

pro'ides the procedure there for. (he pro'ision relating to re'iew constitutes an exception to the

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general rule that once the udgment is signed and pronounced by the court it becomes functus

officio / ceases to ha'e control o'er the matter0 and has no urisdiction to alter it.

MEANING

-tated simply, re'iew means to reconsider, to look again or to re examine 1%. In legal parlance, it

is a udicial re examination of the case by the same court and by the same udge 1!. In re'iew a

udge who has disposed of the matter re'iews an earlier order passed by him in certain

circumstances.

NATURE ABD SCOPE

(he normal principle of law is that once a udgment is pronounced or order is made, the court

becomes functus officio. -uch udgment order is final and it cannot be altered or changed. As a

general rule, once an order has been passed by a court, a re'iew of such order must be subect to

the rules of the game cannot be lightly entertained 17. A re'iew of a udgment is a serious step and

reluctant resort to it is called for only where a glaring omission, patent mistake or like gra'e error

has crept in earlier by udicial fallibility.16 A power of re'iew should not be confused with

appellate power which enable an appellate court to correct all errors committed by the

subordinate court. In the words, it is beyond dispute that a re'iew cannot be e?uated with the

original hearing of the case, and finality of the udgment by a competent court be permitted to be

reopened or reconsidered, unless the earlier udicial 'iew is manifestly wrong. 13It is neither fair

to the court which decided the matter nor to the huge backlog of dockets waited in the ?ueue for

disposal to file re'iew petition indiscriminately and fight o'er again the same battle which has

1% +hamber*s %1st +entury 4ictionary /155&0 at p. 115& >andom @ouse 4ictionary /15&$0

1! -tate of rissa '. +ommr. of "and >ecords and -ettlement, /15DD0 & -++ 13% AI> 15DD

-+ !$3&

17 -aan -ingh '. -tate of >aasthan AI> 1536 -+ D76 at p. D66

16 =oran =ar #asselios +atholicos '. =ar oulose Athanasius, AI> 1567 -+ 6%3 at p. 6!D

/15660 1 -+> 6%$

13 #.@ rabhakar '. -tate of ;arnataka coup. apex bank ltd.,/%$$$0 5 -++ 7D%

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been fought and lost. ublic time is wasted in such matters and the practice, therefore, should be

deprecated.1& 8reater care, seriousness and restraint is needed in re'iew applications.1D

If a re'iew application is not maintainable, it cannot be allowed by describing such an

application as an application for )clarification* or )modification*.15

A right of re'iew is both, substanti'e as well as procedural. As a substanti'e right it has to be

conferred by law, either expressly or by necessary implication. (here can be no inherent right of

re'iew. As a procedural pro'ision, e'ery court or tribunal can correct an inad'ertent 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 ustitae

/ to pre'ent the abuse of process of court0.%$

OBECT

(he remedy of re'iew, which is a reconsideration of the udgment by the same court and by the

same udge, has been borrowed from the courts of e?uity. (he concept was not known to

common law. (he remedy has a remarkable resemblance to a writ of error.%1(he basic philosophy

inherent in the recognition of the doctrine of re'iew is acceptance of human fallibility.

>ectification of an order stems from the fundamental principle that ustice is abo'e all. It is

exercised to remo'e an error and not to disturb the finality.%%

WHO MAY APPLY

1& +handra kante '. -.; @abib, /15&601 -++ 3&7 AI> 15&6 -+ 16$$ 4elhi Admn '. 8urdeep

-ingh,/%$$$0 & -++ %53

1D Infra

15 -oni lal '. -tate of < /15D%0 % -++ !5D

%$ atel Narshi (hakershi '. radyuman -ingh , /15&10 ! -++ D77 AI> 15&$ -+ 1%&!

%1 -ow +handra ;ante '. -.; @abib, /15&601 -++ 3&7 AI> 15&6 -+ 16$$

%% A >egistered -ociety '. <I /15550 3 -++ 33& at p. &6% AI> 1555 -+ %5&5

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A person aggrie'ed by a decree or order may apply for re'iew of a udgment.%!A )person

aggrie'ed* means a person who has suffered a legal grie'ance or against whom a decision has

been pronounced which has wrongfully depri'ed him of something or wrongfully refused him

something or wrongfully affected his title or something.%7 (he )person aggrie'ed* denotes an

elastic, and to some extent, an elusi'e concept. It cannot be confined within the bounds of a

rigid, exact and comprehensi'e definition.%6

8enerally speaking, a person aggrie'ed has been understood to mean one who has a genuine

grie'ance because an order has been made preudicially affects his interest.%3 #ut the concept of

)person aggrie'ed* 'aries according to the context, purpose and pro'ision of statute.%& howe'er

leniently one may construe the expression )party aggrie'ed*, a person not affected directly and

immediately cannot be so considered, otherwise an interpretation of ser'ice rules and regulation

may affect se'eral members and they will also be considered )person aggrie'ed*.%D

A person who is neither a party to the proceedings nor a decree or order binds him, cannot apply

for re'iew as the decree or order does not ad'ersely or preudicially affect him. %5 #ut if the third

party is affected or preudiced by a udgment or order, he can seek re'iew of such order.!$ Again,

a person who is a necessary party to the suit and yet not oined and the order passed in such suit

affects him, may seek re'iew thereof.!1

WHEN REVIEW LIES

%! -.117r 7& >1

%7 ;abari /p0 "td. '. -hi'nath shroff, /15530 1 -++ 35$ AI> 15&3 -+ &7%

%6 9ashbai =otibhai ' >oshan ;umar /15&30 1 -++ 3&1 at p.3&& AI> 15&3 -+ 6&D

%3 Attorney general of 8ambia '. N*ie, 1531 A+ 31& at p.3!7

%&#ar council of =aharashtra '. =.V 4abholkar, /15&60 % -++ &$%

%D 8opabandhu #iswal '. ;rishna +handra /155D0 7-++ 77& AI> 155D -+ 1D&%

%5 #harat -ingh '. irm -heo ershad 8iani >am AI> 15&D 4el 1%%

!$ -hi'deo -ingh '. -tate of unab AI> 153! -+ 15$5

!1-a'ithramma '. @. 8uruppa >eddy AI> 1553 ;ant 55 at p. 1$3

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A re'iew petition is maintainable in the following cases

(') C'%% $* ;&$<& * '' $%

A decree or order from which no appeal lies is open to re'iew. @ence, an application for

re'iew against a decree passed by the court of small causes is competent. n the same

principle, where an appeal is dismissed on the ground that it was incompetent or was time

barred, the pro'ision of re'iew would get attracted!%.(=) C'%% $* ;&$<& '' $% = * -3--+

A re'iew petition is also maintainable in cases where appeal is pro'ided but no such

appeal is preferred by the aggrie'ed party!!. (he fact that order is subect to appeal is no

ground to reect an application of re'iew.!7 An application for re'iew can be presented so

long as no appeal is preferred against the order.!6

2here, howe'er, an appeal is already instituted before making an application for re'iew,

the court cannot entertain such application.!3

(<) D<$%$* * -3-*<% 3-> C- 3 S>' C'%%

(he +ode of +i'il rocedure, 15$D allows a re'iew of a udgment on a reference from a

-mall +auses +ourt.

GROUNDS

An application for re'iew of a udgment may be made on any of the following grounds!&

• 4isco'ery of new and important matter or e'idence, or

• =istake or error apparent on the faces of the record, or

• Any other sufficient reason.

!% >ambaksh '. >aeshwari ;unwar AI> 157D A"" %1!

!! "ily (homas '. <I /%$$$0 3 -++ %%7

!7 =ohd. #aksh '. irthi +hand AI> 15!! "ah %%3

!6 -itaramasastry '. -underamma AI> 1533 A 1&!

!3 8opabandhu #iswal '. ;rishna +handra /155D0 7 -++ 77&

!& r 7& >.1

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BY WHOM REVIEW MAY BE MADE

>e'iew is reconsideration of the same subectCmatter by the same court and by the same udges.

If the udges who has decided the matter is a'ailable he alone has a urisdiction to consider the

case, and re'iew the order earlier passed by him. (he law therefore pro'ides that if he is

a'ailable, he alone should hear the re'iew petition.

(here may, howe'er, be situation wherein this course is not possible. (he same )udicial officer*

may not be a'ailable. In such cases his successors or any other udge or court of concurrent

urisdiction may hear the re'iew petition and decide the same.

NO INHERENT POWER OF REVIEW

It is a well settled law that the power of re'iew is not an inherent power. It must be conferred by

law either expressly or by necessary implication. If there is no such power of re'iew, the order

cannot be re'iewed. In such cases, the ?uestion whether the order is correct or 'alid in law does

not arise of consideration.!D It is howe'er the duty of the court to correct the gra'e and palpable

errors committed by it.!5

SUO MOTU REVIEW

(he power of re'iew can be exercised by a court on an application by person aggrie'ed. (he

code does not empower the court to exercise power of re'iew suo motu.

It is a settled principle of law that when a statute re?uires a particular thing to be done in

particular manner, it has to be done only in that manner and in no any other manner. )(here is no

pro'ision either in section 117 or in r. 7&of the code pro'ing for any suo motu re'iew*.

In A.R . ANTHONYN?. R.S. NAYA!80

-upreme +ourt obser'ed that -+ may exercise power of re'iew suo motu in an appropriate case.

!D atel Narshi (hakershi '. radyuman -inghi /15&10 ! -++ D77

!5 -hi'deo -ingh '. -tate of unab AI> 153! -+ 15$5

7$ /15DD0 % -++3$% A( 367

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LIMITATION

(he period of limitation for an application for re'iew of a udgment by a court other than the

-upreme +ourt is thirty days from the date of decree or order.71

REVIEW IN WRIT PETITIONS

After amendment of section 171 of the +ode and insertion of Explanation to that section it is

clear that the pro'ision of r 7& of the +ode do not apply to writ petition filed in a @igh +ourt

under Art %%3 of the +onstitution.7%

(here is nothing in Art %%3 to preclude a @igh +ourt from exercising the power of re'iew which

inheres in e'ery court of plenary urisdiction to pre'ent miscarriage of ustice or to correct gra'e

and palpable errors committed by it.

REVIEW BY SUPREME COURT

(he pro'ision of rder 7& apply to order passed under the +ode of +i'il rocedure. Article 1!&

of the +onstitution confers power on the -upreme +ourt to re'iew its udgment subect to the

pro'ision of any law made by the arliament or the >ules made under Art 176. (he power of the

-upreme +ourt, therefore, cannot be curtailed by the +ode of +i'il rocedure.

71 Art 1%7, limitation act,153!

7% Expln. to -. 171

1&

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REVISION

GENERAL

-ection 116 of the +ode of +i'il rocedure empowers a @igh +ourt to entertain a re'ision in any

case decided by any subordinate court in certain n circumstances. (his urisdiction is known as

re'isional urisdiction of @igh +ourt.

MEANING

According to the dictionary meaning ) to re'ise* means )to look again or repeatedly at* ) to go

through carefully and correct where necessary*, )to look o'er with a 'iew of impro'ing or

correcting*. )>e'ision* means )the action of re'ising, especially critical or careful examination pr perusal with a 'iew to correcting or impro'ing*.

-ection 116 in'ests all @igh +ourt with re'isional urisdiction.

NATURE AND SCOPE

-ec 116 authoriBes the @igh +ourt to satisfy itself on three matters

• that the order of the subordinate court is within urisdiction

• that the case is one in which the court ought to exercise its urisdiction

• that in exercising urisdiction the court has not acted illegally that is, in breach of some

pro'ision of law, or with material irregularity, that is, by committing some error of

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procedure in the course of the trial which is material in that it may ha'e affected the

ultimate decision.7!

If the court is satisfied with these three matters, it has no power to interfere because it differs,

howe'er profoundly, from the conclusion of the subordinate court on ?uestions of fact or of law.

it is well established that where there is no ?uestion of urisdiction the decision cannot be

corrected for a court has urisdiction to decide wrongly as well as rightly.77

OBECT

(he underlying obect of -ection 116 is to pre'ent subordinate courts from acting arbitrarily,

capriciously and illegally or irregularly in the exercise of their urisdiction. It clothes the @igh

+ourt with the powers to see that the proceeding of the subordinate court is conducted in

accordance with the law within the bounds of their urisdiction and in furtherance of ustice. 76 It

enables the @igh +ourt to correct, when necessary errors of urisdiction committed by

subordinate courts and pro'ides the means to an aggrie'ed party to obtain rectification of nonC

appealable orders.

At the same time howe'er the udges of the lower courts ha'e perfect urisdiction to decide a

case, and e'en if they decide wrongly, they do not commit )urisdiction error*. >e'isional

urisdiction is not intended to allow the @igh +ourt to interfere and correct the errors of fact or law.73

WHO MAY FILE

7! ;eshardeo '. >adha ;issen AI> 156! -+ %! at p. %&C%D

77 =aor -.- ;hanna '. #rig..9.4illon, supra, at p. 6$6

76 =aor -.- ;hanna '. #rig..9.4illon, supra, at p. 6$6

73 >aah Amir @assan '. -heo #aksh -ingh /1DD!C1DD70 11 IA %!&

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A person aggrie'ed by an order passed by a court subordinate to the @igh +ourt may file a

re'ision against such order .7&#ut the @igh +ourt may e'en suo motu exercises re'isional

urisdiction under section116 of the +ode.

CONDITIONS FOR REVISION

(he following conditions must be satisfied before re'isional urisdiction can be exercised by the

@igh +ourt

• a case must ha'e been decided

• the court which has decided the case must be a court subordinate to @igh +ourt

• the order should not be an appealable one, and

• the subordinate court must ha'e

exercised urisdiction not 'ested in it by law failed to exercise urisdiction 'ested in it

acted in the exercise of its urisdiction illegally or with material irregularity

LIMITATION

(he period of limitation for preferring a re'ision application is ninety days from the decree or

order sought to be re'ised.7D

SUO MOTU EERCISE OF POWER

Normally, the @igh +ourt will exercise re'isional powers on the application of an aggrie'ed

party, but in appropriate cases where the conditions laid down in this section are satisfied, it may

suo motu call for any record and pass necessary orders. (here is no bar on the power of the @igh

+ourt in exercising re'isional urisdiction unless a prayer is made by the party. A person other

than a party to a proceeding can also bring illegality or irregularity to the notice of the @igh

+ourt.75

REVISION UNDER OTHER LAW

7& =adan lal (Iwari '. #engal Nagpur +otton =ills ltd AI> 1537 = %5&

7D Art 1!1, "imitation Act,153!

75 -wastik il =ills "td. '. +-(

%$

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>e'isional urisdiction under section116 ++ is limited to )errors of urisdiction*. In other

statutes, howe'er, re'isional powers may not be confined or circumscribed to errors to

urisdiction only. (hus, where re'isional powers can be exercised to decide )legality* or

)propriety*, or )correctness* of the decision, the urisdiction is wider than the urisdiction unde7r

section 116 ++. (he scope of re'isional urisdiction thus depends upon the language of the

statute conferring urisdiction on the court.6$

INTERLOCUTORY ORDERS

(hey fall into two categories

Interlocutory order which are appealable

Interlocutory order which are not appealable

(he order falling under the former category is appealable under section 1$7 and hence, no

re'ision lies, whereas the orders falling under the latter class are subect to re'ision under

-ection 116, if the conditions laid down in the section are fulfilled.61

PROCEDURE

No specific or express procedure is prescribed on the +ode which is re?uired to be followed in

re'ision. 8rounds of re'ision can be couched as in an appeal. (hey should, howe'er, containobections as to urisdiction.6% rdinarily a certified copy of the order impugned should be filed

in the re'ision.6! No cross obection can be filed in re'ision. #ut if the @igh +ourt feels that a

particular finding recorded by the subordinate court is uncalled for, it can interfere suo motu.67

nce a re'ision is admitted, it ought to ha'e been decided on merits. It should not be dismissed

on the grounds that it ought not to ha'e been admitted. If the @igh +ourt holds that re'ision is

not maintainable or is barred by limitation, it should not make any obser'ation on merits.

6$ >abir ;aur '. -. +hokesiri and +o. /15D50 1 -++ 1D76

61 ;hushro -. 8andhi '. N.A 8uBder, /15350 1 -++ !6D

6% -. 116/10 /a0, /b0, /c0

6! =ahesh +hander '. 4arshan ;aur AI> 156% N+ 35 /4elhi0

67 9ia "al '. =ohan "al AI> 153$ 9G; %%

%1

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A single udge of the @igh +ourt cannot be said to be a court subordinate to the @igh +ourt.

@ence, no re'ision lies against an order passed by a single udge of the @igh +ourt.

CONCLUSION

(his assignment is concluded by explaining the relationship between Appeal, >e'ision, and

>e'iew. (he relation between these three can be illustrated as follows

A' '*+ R?$%$*

• An appeal lies to a superior court, which may not necessarily be a @igh +ourt, while a

re'ision application under the +ode lies only to the @igh +ourt.

• An appeal lies only from the decrees and appealable orders but a re'ision application lies

from any decision of a court a subordinate to the @igh +ourt from which no appeal lies to

@igh +ourt or to any subordinate court.

•A right of appeal is a substanti'e right conferred by the statute, while the re'isional power of @igh +ourt is purely discretionary.

• An appeal abates if the legal representati'es of a deceased party are not brought on record

within the prescribed period. A re'ision application, howe'er, does not abate in such

cases. (he @igh +ourt may at any time bring the proper parties on the record of the cases.

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A' '*+ R?$;

An appeal lies to the superior court, while a re'iew lies to the same court.

>e'iew of a udgment in'ol'es reconsideration of the same subect matter by the same

udge, while an appeal is heard by the different udge.

(he grounds of appeal are wider than the grounds of re'iew

A second appeal lies on a substantial ?uestion of law. A second re'iew application,

howe'er does not lie.

R?$; '*+ R?$%$*

• >e'isional power can be exercised by the @igh +ourt only in a case where no appeal lies

to the @igh +ourt, but re'iew can be made e'en when an appeal lies to the @igh +ourt.

• >e'isional powers can be exercised by the @igh +ourt e'en suo motu, but for re'iew an

application has to be made by an aggrie'ed party.

• (he power of re'ision and re'iew can be exercised on different grounds.

• (he order granting re'iew is appealable, but an order passed in the exercise of re'isional

urisdiction is not appealable.

%!

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BIBLIOGRAPHY

• +.; (akwani, +i'il rocedure

• =anupatra.com

• www.lexisnexis.co.in

• www.indiankanoon.org

%7

http://www.lexisnexis.co.in/

http://www.lexisnexis.co.in/

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