PROCEDURE OF CIVIL TRIAL

SEVEN PARTS

INSTITUTION OF REJECTION OF SUMMON STAY OF SUIT, RES

SUITS PLAINT JUDCATA

JUDGEMENT/
EXECUTION
DECREE

APPEALS, REFERENCE,
REVIEW, REVISION

I. INSTITUTION OF SUIT (SECTION 15,16,20,26 of The Code of Civil

Procedure, 1908)

a. Where to file the case1:

i. Territorial jurisdiction of the court:
 Every civil suit in regards to recovery
partition/sale/mortgage or claim or compensation from
any immovable/movable property in dispute shall be
instituted within whose local limits the property is
situated.
 If the plaintiff is obtaining compensation from the
property of defendant then the suit is instituted either
within the local limits where property is situated or
where defendant resides or carries business. 2
ii. Pecuniary jurisdiction of the court depends upon the subject-
matter of the suit:

1 Section 16 of The Code of Civil Procedure, 1908

2Section 20 of The Code of Civil Procedure, 1908
  Pecuniary jurisdiction means whether a court can try
cases and suits of the monetary value/amount of the case
or suit in question
 Every state have their own act regarding the pecuniary
jurisdiction of the court.
b. Filing of the suit/plaint:
 Sec. 15. Every suit shall be instituted in the court of the lowest grade
competent to try:
There is a hierarchy of the court. The suit must be filed in the lowest
court i.e., district court and then appeal lies in high court to Supreme
Court.
 Plaint is a written complaint/allegations3.
 Particulars of plaint4:
1. The name of the plaintiff,
2. The name, description and place of residence of the plaintiff,
3. The name, description and place of residence of the defendant,
4. Where the plaintiff or the defendant is a minor or a person of
unsound mind, a statement to that effect, Judicial Officers’
Examination Course Material
5. The facts constituting the cause of action and when it arose,
6. The facts showing that the Court has jurisdiction,
7. The relief which the plaintiff claims,
8. Where the plaintiff has allowed to set off or relinquished a
portion of his claim, the amount so allowed or relinquished, and
9. A statement of the value of the subject matter of the suit for the
purpose of jurisdiction and of Court fee.
10. Verification from plaintiff, that contents of plaint are true &
correct (Affidavit)

 One who a file it is called “Plaintiff” against whom it is filed is

called “Defendant”.
 Vakalatnama:
It is a written document by which person filing the case authorises the
Advocate to represent on their behalf.
It contains:
 The advocates will not be responsible for any decision of court.

3 Section 26 of The Code of Civil Procedure Code, 1908: (1) Every suit shall be instituted by the
presentation of a plaint or in such other manner as may be prescribed. (2) In every plaint, facts shall
be proved by affidavit.
4 Order VII, R 1: Particulars to be contained in plaint.
  All cost incurred during proceeding will not be paid by
advocate.
 Advocate can retain the documents.
 Vakalatnama affixed on last page of plaint/suit.

c. Remitting court fees:

 According to The Court Fees Act, 1870 a prescribed amount for
court fees is given.
 It can be done by two methods:
i) A percentage of the value of compensation
claimed or the value of the property.
ii) Fixed amount in certain categories.
For example:
Miscellaneous application prescribed court fees is
Rs. 10/-
Arbitration case under Section 34 prescribed court
fees is Rs. 300/-
d. Suit Valuation:
 Value of the subject matter of the suit is called “valuation of
suit” or “suit-value”.
 It is to determine the court jurisdiction which have the
competent to try it.
 It is dealt by the act of The Suit Valuation Act, 1887.

e. Limitation period:
 It is dealt by the act of The Limitation Act, 1963.
 Generally, limitation for the civil suit is 3 years from the cause of
action in the cases related to contract or movable properties.
f. Documents submitted to registrar:
 The plaint along with the other documents should first be
submitted to the Registrar of the Court.
 The Registrar is the person authorized by the Court of law to
check the error and raise the objections.
 After scrutiny by Registrar, if there is no objection then the case
will be listed before the judge.
 If there is any objection and need of correction, the Registrar
rejects the plaint and asked for the correction.
 II. REJECTION OF PLAINT (ORDER VII RULE 11)
a. Rule 11 says that the plaint will be rejected in the following cases-
i. Where it does not disclose the cause of action:
 If a plaint is filed and court after reading the plaint get
to know that the plaintiff does not disclose the cause
of action and is not entitled to any relief. The court
may reject the plaint without issuing the notice to the
defendant.
 The plaint should be rejected as a whole if it does not
disclose cause of action. A part of it cannot be
rejected.5

ii. Where the relief claimed by the plaintiff is undervalued

and on correction asked by Court failed to do so:
 The claim of the plaintiff must be properly valued.

iii. Where it is insufficiently stamped:

Sometimes the relief claimed by the plaintiff is properly
valued, but the plaint is written upon a paper insufficiently
stamped and the plaintiff fails to pay the requisite Court fees
within the time fixed prescribed. In that case, the plaint will
be rejected.

iv. Where the Suit appears to be barred by any Law:

Where the suit appears from the statements in the plaint to
be barred by any law, the Court will reject the plaint.
Barred by law means obstructed or prevented from legal
remedy.

v. Where the plaint is not filed in duplicate

vi. Where the plaintiff fails to comply with the provision of
Rule 9:
In Rule 9 it is provided that when court is satisfied with the
facts admitted by the Plaintiff and Court orders to served the
summons to the defendant then plaintiff need to submit as

5 Rooplal Lal Sathi vs. Nachttar Singh Gill 1982 (3) SCC 487
 many copies of the plaint as there are defendant within the
seven days from the date of order.

b. Rule 12 Procedures on Rejection of Plaint:

Where a plaint is rejected by the Court, the Judge will pass the order to
that effect and will record the reason for it.

c. Rule 13 Effect of Rejection of Plaint:

If the plaint is rejected on an of the above grounds, the plaintiff is not
allowed the fresh plaint on the same cause of action.
Any order rejecting a plaint is a ‘decree’ and is appealable.

III. WRITTEN STATEMENT AND SUMMON (Section 27, Order V)

If the court thinks there is a merit in the case then notice will be issued to
the defendant under Order 5 summoning his appearance & directing him
to file his reply.

SUMMON:
A summon is a legal document that is issued by a Court to a person
involved in a legal proceeding. When a legal action took place against a
person or when any person is required to appear in the court as a witness
in a proceeding, to call upon such person and ensure his presence on the
given date of the proceeding, summons are served.
According to Section 26 summon be issued to defendant to appear before
the court within the 30 days from the date of the institution of the suit.

Procedure:
a. Summon issued as the manner prescribed in Order V of the Act,
1908 with the copy of plaint and other documents.
b. Court must authorised a person to issue summon.
c. Summon be made on plaintiff expense.
d. Every summon shall be signed by the Judge or the officer appointed
by the Judge and shall have the seal of the court.

Various modes of Summon:

1. Personal or direct service:
Rules 10 to 16 and 18 deal with the personal or direct service of
summon upon the defendant.
This is an ordinary service of summon.
 The rules are:
 The summon must be served to the defendant in
person or to his authorized agent. (Rule 12)
 When there are more than one defendant, service of
summon shall be made to each defendant. (Rule 11)
 When the defendant is not present at the place of his
residence then the service of summon must be given
to adult male member of the defendant’s family. (Rule
15)

2. Service by Affixation (Rule 17):

When the defendant or his agent refuses to accept personal
service of summons, this method is to be used when the
defendant or his agent refuses to accept personal service, the
serving officer shall affix a copy of the summons to on the outer
door or some other conspicuous part of the house in which the
defendant ordinarily resides or carries on business or personally
works for gain.

3. Service by Post:
Rule 19B specifies that the court shall, in addition to, and
simultaneously with, the issue of summons for personal service,
also direct the summons for personal service, also direct the
summons to be serve, by registered post with acknowledgement
due addressed to the defendant or his agent at the place where
the defendant or his agent actually and voluntarily resides or
carriers or business.

4. Substituted Service:
The Provision for substituted service is provided for in Rule 20
or order 5 of the C P C. Rule 20 specifies that in two situations
the method of substituted service may be restore to:
 When there is reason to believe that the defendant is
keeping out of the way for the purpose of avoiding
service, or
 When for any other reason summons cannot be served in
the ordinary way.
 the Court shall order the summons to be served by
affixing a copy thereof in some conspicuous place in the
Court-house, and also upon some conspicuous part of the
 house in which the defendant is known to have last
resided or carried on business or personally worked for
gain, or in such other manner as the Court thinks fit.
 Orders service by an advertisement in a newspaper, the
newspaper shall be a daily newspaper circulating in the
locality in which the defendant is last known to have
actually and voluntarily resided, carried on business or
personally worked for gain.
5. When defendant reside in the foreign territory (Rule 26):
 The summon shall be sent to the Political Agent in that
country through the Ministry of Foreign Affairs where
the defendant is residing or place of business by post or
otherwise, or if so directed by the Central Government
 Those Political Agent must sent the summon to that
person and if those Political Agent return the summon
with an endorsement, then it will be seen as the summon
is duly served on the Defendant.
 The endorsement shall deemed as evidence that summon
was duly served to him.
6. Summon to the Company (Order 29 Rule 2)
Summon duly be served to:
a. On the secretary or on any director or other principal officer
of the corporation.
b. By leaving or sending it by post addressed to Registered
office, if no Registered office then be served to the corporate
office.
In the case of Parasarampuriya Synthetic Ltd. vs. Shankar
Prasad6 it was held by Delhi High Court that a summon
must be sent to the Registered Office only.
Order 29 Rule 1 clearly states that Secretary, Director or a
Principal Officer of a company would be treated as duly
authorised to institute suits on behalf of company. Any
person mentioned who signed and verified on behalf of
corporation shall be answerable to the court who is able to
depose the facts of the case.
In the case of United Bank of India vs. Naresh Kumar7 held
that a company is a juristic person, some person must be

6 AIR 2003 Del 348

7 AIR 1997 SC 3
 authorised by Boards of Directors to sign on their behalf the
legal documents.

WRITTEN STATEMENT (Order 8 Rule 1)

When notice is issued, the defendant required to appear before the court on the date
mentioned in the notice. Before such date, the defendant have to file “written
statement” within 30 days from the issue of the notice or can be extended to 90 days
if court may thinks fir. The written statement should specifically denied all the
allegations or admit. It also contains the verification by the defendant, stating that,
the contents of written statement are true and correct.

REPLICATION BY PLAINTIFF:

It is a legal document filed by the plaintiff after written statement. "Replication"

should also specifically deny the allegations raised by the Defendant in written
statement. Anything not denied is deemed to be accepted. Replication should also
contain “verification" from the plaintiff, stating that contents of "Replication" are true
and correct. Once Replication is filed, pleadings are stated to be complete.

FILING OF OTHER DOCUMENTS:

If parties want to file more documents they can file additional document supporting
it with an affidavit. The documents filed by one party may be admitted by other
party. If admitted by both the party it shall form a part of record of court. (Order 13,
Rule 49). Document should be filed in original and a spare copy be given to opposite
party.
IV. RES JUDICATA, STAY ON SUIT:
Stay of Suit (Res Sub-judice)(Sec. 10):
It provides that no court shall proceed with any of the matter which is directly or
substantially in issue in a previously instituted suit between same parties or pending
in same or other court.
The intention is to avoid two parallel litigations that are similar in respect of cause of
action, subject matter and relief in two courts at the same time; it protects the person
from multiplicity of proceedings.8
Res Judicata (Sec. 11)

8
Indian Bank v. Maharashtra State Cooperative Marketing Federation Limited AIR 1998 SC 1952
COMMENCEMENT OF TRIAL PROCEEDINGS
1. FRAMING OF ISSUES (ORDER 14):
Issue arise when material fact of the case is affirmed by one party and denied
by other party. After reading the plaint, written statement or after hearing the
plaintiff or their counsel, the court shall ascertain upon what material
proposition of fact/law the parties are at variance and shall then proceed to
frame & record issue on which decision of the case depends.
While passing the order the court will deal with each issue separately & pass
the judgement.
2. CALLING UPON THE WITNESSES:
Both the parties file the list of witness within 15 days from the date on which
issues were framed. Witness can be called upon on their own or through
summon. Party calling the witness shall deposit money for their expenses
known as DIET MONEY.
3. FILING DOCUMENTS AND LEADING EVIDENCES:
A party, by the means of discovery, is enabled to obtain from his opponent
material facts or information in the form of documents or admissions which will
support his own case or damage his opponent’s case. Though the nature of each
party’s case is set out in the plaint and the written statement, they may not
sufficiently disclose their respective cases.
Under Order 11, with the leave of court, one can present the additional
documents to make their case strong. Although every document is already
annexed with the plaint or written, but sometimes there was need to add more
document.
4. ARGUMENTS FROM BOTH SIDES:
The right to begin or the privilege of opening the case is determined by the
rules of evidence. The general rule is that the party on whom the burden of
proof lies should begin first. In every case who instituted the suit (plaintiff)
have to proof his case.
Arguments by both sides are intended to brief the judge with a summary of
the evidences produced by each side. At this stage there are examinations and
submissions by the parties in order to prove their point or substantiate their
argument.

V. JUDGEMENT/ DECREE (SECTION 33, ORDER 20):

 After the hearing of a matter is completed the judge pronounces the
judgment in open court.9 A decree is followed by the judgment.10
Within fifteen days of the pronouncement of a judgment, the concerned
court is required to draw up the decree.11 Order XX Rule 6 of the CPC lays
down, that the decree shall agree with the judgment. Copies of the
judgment and decree ought to be provided to the parties to a suit.12

In the case of R.C. Sharma v. Union of India13, “ it should be declared

within thirty days from the day of conclusion of the hearing and in case
some extreme situation arises then the provision is also there to extend
this declaration of pronouncement till the sixtieth day from the conclusion
of hearing. Thus judges have a discretionary power for the
pronouncement of judgment for these sixty days but after that declaration
becomes mandatory on the part of the judge.”

Contents of judgment:
Judgments of courts other than a court of small causes shall contain: (a) a concise
statement of the case; (b) the points for determination; (c) the decision thereon; and
(d) the reasons for such decision. Judgements of a court of small causes need not
contain more than (b) and (c), i.e., the points for determination and the decision.14

Alteration of judgment:
The judgment once when pronounced and signed by the judge in the open court
shall not afterwards be altered or added except in cases like:

(l)(a) clerical or arithmetical mistake; or (b) errors arising from any accidental slip or
omission (section 152); or

(2) on review (section 114).

There is no inherent jurisdiction in the court to rehear a case and alter or add to a
judgment which has been duly pronounced and deliberately signed and sealed in
accordance with law even with the consent of the parties.

Decree:

9 Order XX Rule 1, Code of Civil Procedure, 1908

10 Section 33 of Code of Civil Procedure, 1908
11 Order XX Rule 6-A, Code of Civil Procedure, 1908
12 Order XX, Rule 6-B
13 1976 AIR 2037
14 (Order XX, Rule 4).
Decree means the formal expression of an adjudication which, so far as regards the
Court expressing it, conclusively determines the rights of the parties with regard to
all or any of the matters in controversy in the suit and may be either preliminary or
final. It shall be deemed to include the rejection of a plaint and the determination of
any question within section 144, but shall not include-
a) any adjudication from which an appeal lies as an appeal from an order, or
b) any order of dismissal for default.

The decree forms the last part of the judgment and is extracted from the entire
judgment by the decree clerk who contains the basic details and the result of the
case.

Contents of Decree:
(1) The decree shall agree with the judgment, it shall contain the number of the suit,
the names and descriptions of the parties, their registered addresses, and particulars
of the claim, and shall specify clearly the relief granted or other determination of the
suit.

(2) The decree shall also state the amount of costs incurred in the suit, and by whom
or out of what property and in what proportions such costs are to be paid.

(3) The Court may direct that the costs payable to one party by the other shall be set
off against any sum which is admitted or found to be due from the former to the
latter.15

Preparation of decree:
(1) Every endeavour shall be made to ensure that the decree is drawn up as
expeditiously as possible and, in any case, within fifteen days from the date on
which the judgment is pronounced.

(2) An appeal may be preferred against the decree without filing a copy of the decree
and in such a case the copy made available to the party by the Court shall for the
purposes of Rule 1 of Order XLI be treated as the decree. But as soon as the decree is
drawn, the judgment shall cease to have the effect of a decree for the purposes of
execution or for any other purpose. 16

Copies of the decree should be provided to the parties.

Date of decree:

15 (Order XX, Rule 6)

16 (Order XX, Rule 6-A).
The decree shall bear date the day on which the judgment was pronounced, and,
when the Judge has satisfied himself that the decree has been drawn up in
accordance with the judgment, he shall sign the decree.17

An appeal maybe preferred against the decree without filing a copy of the decree. To
that effect a copy of the judgment would be treated as the decree.

VI. EXECUTION (Section 36, Order 21)

Execution means enforcing or giving effect to the judgement of the court.
Execution is the medium by which a decree-holder compels the
judgement-debtor to carry out the obligations of the decree. The execution
is complete when the judgement-creditor or decree-holder gets money or
other thing awarded to him by judgement, decree or order.
If the judgement-debtor fails to honour the decree passed against him, the
decree holder can seek execution of the decree by filing an execution
petition in the court. The court which passes the decree may execute it.

Procedure in Execution:
Section 51 to 54 talks about procedure in execution or mode for
execution.
Application for execution of decree under this section may be either
oral (order 21 rule 10) or written (order 21, rule 11).
Application must be given within 2 years from the date of the decree.
Party has to choose the mode of implementation of decree. Court may
execute decree as per the choice prayed by the decree-holder or as
court may thinks fit.
Objections will be heard by the court by judgement-debtor or parties
having interest in property by way of application.
If the objection will be accepted by the court then suit of execution of
decree will be set aside or otherwise will pass a decree for execution
against the judgement-debtor.

17 (Order XX, Rule 7).

Mode of execution:
The code lays down various mode of execution. After the decree-
holder files an application for execution of decree, the executing court
can enforce execution.
A decree may be enforced by delivery of any property specified in the
decree, by attachment and sale or by sale without attachment of the
property, or by arrest and detention, or by appointing a receiver, or by
effecting partition, or any such manner which the nature of relief
requires.
1. Arrest And Detention:
One of the modes of executing a decree is arrest and detention of
the judgement-debtor in civil imprisonment.
Where the decree is for payment of money, it can be executed by
arrest and detention of the judgement-debtor.
A judgement-debtor may be arrested at any time on any day in
execution of a decree. After this arrest, he must be brought before
the court as soon as practicable.
For the purpose of making arrest, no dwelling house may be
entered after sunset or before sunrise. Further, no outer door of a
dwelling house may be broken open unless such dwelling house is
in the occupancy of the judgement-debtor and he refuses or prevent
access thereto.
No order of detention of the judgement-debtor shall be made where
the decretal amount does not exceed Rs.2000.
Where the judgement-debtor pays the decretal amount and costs of
arrest to the officer, he will be released.
A women, judicial officers, the parties, their pleaders, member of
legislative bodies, a judgement-debtor where the decretal amount
does not exceed Rs 2,000, these person cannot be arrested and
detained in civil imprisionment.
2. Attachment Of Property:
A decree may also be executed on the application of the decree-
holder by attachment and sale of the property of judgement-debtor.
Sections 60 to 64 and rules 41 to 57 of Order 21 deals with the
attachment of property.
The code enumerates properties which are liable to be attached and
sold in execution of a decree. It specifies which properties are liable
to be attached and sold and which are not liable to be attached or
sold. It also prescribes the procedure where the same.
Section 60(1) declares what properties are liable to attachment and
sale in execution of a decree, and what properties are exempted. All
saleable property( movable or immovable) belonging to the
judgement-debtor or over which or the portion of which he has a
disposing power which he may exercise for his own benefit may be
attached and sold in execution of a decree against him.
Section 61 deals where the judgement-debtor is agriculturalist. Any
agriculturalist produce is subject matter of agriculturalist. The
quantum of attachment of agricultural product depends upon the
quantum of decretal amount.
3. Percept:
Section 46- “precept” means a command, an order, a writ or a
warrant. A percept is an order or direction given by court which
passed the decree to a court which has the power to attach any
property belonging to the judgement-debtor.
Section 46 provides that court which passed a decree may, upon an
application by the decree-holder, issue a percept to that court
within whose jurisdiction the property of the judgement-debtor is
lying to attach any property specified in the percept.
The interim order for attachment is valid for the period of only 2
months.
 4. Sale Of The Property:
A decree may be executed by attachment and sale or sale without
attachment of any property. Section 65 to 73 and rules 64 to 94 of
Order 21 deals with the subject relating to sale of movable and
immovable property.
 Power of court: Rule 64-65
Rule 64: a court may sell the property, which he has taken
into custody under an attachment under order 60.
Rule 65: appointment of officer by the court who will be
charged to sell the property. Officer will be the
representative of the court and will sell the property for
execution of decree.
 Proclamation of sale: Rule 66-67
It is a kind of order or declaration. It operates as a public
notice regarding the sale. It’s says that people can participate
in auction and sale. Proclamation can be in writing or by
customary mode.

Contents of proclamation:-

1. Time and place of sale

2. Property to be sold
3. Revenue, if any, assessed upon the property;
4. Encumbrance, if any, to which property is liable;
5. Amount to be recovered;
6. Details relating to property, such as title deed, length etc.

 Time of sale: Rule 68

No sale without the consent in writing of the judgement-
debtor can take place before fifteen days in case of
 immovable property and before 7 days in case of movable
property from the date of proclamation in the courthouse. A
sell can be conducted immediately if the property is of
perishable nature.
 Adjournment of sale: rule 69
If the judgement-debtor after the issue of proclamation and
before sell has paid the amount, or has partly promised to
pay on the given date before completion of public order, if
there is any justified reason, in those circumstances, court
has discretionary power to postponed the sell. If it has been
postponed for period of 30 days, fresh proclamation has to
be issued and again the process of rule 67, 68 and 69 will
follow.
Sell cannot be postponed where judgement-debtor dies
before the date of sell or after the issue of proclamation, or
on the date of auction.

7. APPEAL, REFERENCE, REVIEW & REVISION:

A. APPEAL (Section 96 & 100)

Any person who is aggrieved by any decree or order of the court may
prefer an appeal to a superior court. Every person has a right of First
Appeal against any decree passed by any court. In certain cases, a
subordinate court may make a reference to a High Court.

Essentials of an Appeal:
 A decision (usually a decree of a court or the ruling of an
administrative authority);
 A person aggrieved, who is often, though not necessarily, a
party to the original proceeding; and
 An appellate body ready and willing to entertain an appeal.
Who May Appeal:
a. The subject-matter of the appeal must be a “decree”, i.e. “the rights
of the parties with regard to all or any of the matters in controversy in the
suit
b. The party appealing must have been adversely affected by such
determination.
Under the general principles of Section 92 of the CPC, the following
persons are entitled to appeal:
 A party to the suit who is aggrieved or adversely affected by
the decree or, if such party is dead, his legal representative;
 A person claiming under a party to the suit or a transferee of
the interests of such a 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 ad litem appointed by the court in a suit by or
against a minor;
 Any other person, with the leave of the court, if he is
adversely affected by the decree.

1. First Appeal (Section 96)

An appeal lies against a decree passed by a court in exercise of
its original jurisdiction.
Appeal maintainable :
 Against a decree
 Against preliminary decree
 Against final decree
 Rejection of plaint under Order 7 Rule 11 C.P.C.
Determination of any question within Section 144
(restitution)
 Original decree passed ex-parte.
 No appeal lies which passed with the consent of the
parties.
 No appeal lies in the matter less than Rs. 10,000/-/.

2. Second Appeal (Section 100)

 Second appeal lies against a decree passed by a first
appellate court. As per Section 100 of the CPC, a second
appeal can be filed before a High Court from every
decree passed in appeal by a subordinate court, if the
High Court is satisfied that “the case involves a substantial
question of law”.
  An appeal may lie from an appellate decree passed ex
parte.
 Appeal must state a substantial question of law involved
in the case.
It is stated in the case if Govindaraja vs. Mariamman18 that the
scope of High Court jurisdiction in second appeal under section
100 is limited to the substantial question of law.

Power of Appellate Court (Section 107):

First Appellate Court has got power to judge the correctness of
findings of facts as well as of law recorded by the Trial Court.
However, Second Appeal to the High Court under Section 100
C.P.C. lies only if the case involves substantial question of law.
Following are the powers of Appellate Court provided under
Section 107:
a. To determine a case finally
b. To remand a case
c. To frame issues and refer them for trial
d. To take additional evidence or to require sunch evidence to
be taken.

No appeal lies when:

a. Suit is dismissed due to default.
b. Determination of any question within Section 47.
c. Decree passed by the court with the consent of the
parties.
d. Suit does not exceed Rs.10000/-.
e. No appeal in trival defects under Section 99. It says no
appeal lies when there is misjoinder or non-joinders of
parties or defect or irregularity or error.

Limitation:

a. To any court within the 90 days from date of

decree an appeal should be filed.
b. To High Court it is 90 days.

Procedure:

18
AIR 2005 SC 1008
 a. If execution proceeding have started then an
application to stay the proceeding must be initiated
and then an application of appeal be filed.
b. Appellant may require depositing some security
(Process fee), fixing the date for hearing or it can be
dismissed by the court if there is no substantial
question of law.
c. After date has been fixed, issue the notice to the
opposite parties to appear on the next date.
d. Also need to give notice to the lower court.

B. REFERENCE, REVIEW & REVISION:

REFERENCE (Section 113)

A suit or appeal or execution of decree where no further appeal lies,
question of law arises, the court may on a reasonable doubt , either on
its own or by the application of party, refer it for the opinion of High
Court.

Essentials:
a. Reference is done only in non-appealable matter.
b. In the meanwhile, the suit or appeal will in stay till the
decision of high court.
c. High court heard the parties, pass the copy of the decision
to the court.
d. The court will dispose the case in the conformity of the
decision of High Court.
e. Questions related to:

(i) A question as to validity of any Act, ordinance or

Regulation or any provision therein arises in a case
before the court.
(ii) The Court is of the opinion that the same is invalid
or inoperative
(iii) The same has not till then been declared invalid
by the High Court to which the Court is subordinate
or by the Supreme Court, and
(iv) The determination of the validity thereof is
necessary for the disposal of the case.
Is Reference different from Appeal, Review and Revision?
Reference is always made when a case is pending, whereas an appeal, review or
reference is always made after the court has passed its judgment, decree or order.
A reference is always made to the High Court, unlike an appeal which can be filed in
any higher court or a review which is always filed in the same court that has passed
the judgment.
A reference can only be made to question the legality or validity of a law, but an
appeal is filed to reverse a subordinate court’s decision, a review is filed to rectify or
add any existing or additional fact and a revision is made when the lower court acts
outside its power or jurisdiction.
It is necessary that to remove error that is anticipated by a court of subordinate
jurisdiction by referring the same to the court of higher jurisdiction. It has been
observed that such provisions also ensure that the validity of a legislative provision
under an Act, Ordinance or Regulation should be interpreted and decided by the
highest court in the state.19

It is a consultative power of the High Court and therefore after looking into to
matter may answer or may refuse to answer or even quash the question so referred
by the subordinate court. The effect of answering it will amount disposal of the case.
If the High Court answers the question in favour of the plaintiff, the decree will be
confirmed but if it is answered against him the suit will be dismissed. But the High
Court has no power of making any orders or suggestions regarding the case so
referred. 20

REVIEW & REVISION:

TOPICS REVIEW REVISION

1. RELATED SECTION 114 SECTION 115

SECTIONS Order 47 Order
FROM CPC
2. Subject as aforesaid, any (1) The High Court may call for
LANGUAGE person considering himself the record of any case which has
OF THE aggrieved—
been decide by any court
SECTION
subordinate to such High Court
(a) by a decree or order from and in which no appeal lies
which an appeal is allowed thereto, and if such subordinate
by this Code, but from which

19 Public Prosecutor v. B. Krishnasami AIR 1957 AP 567

20 Municipal Corporation of City v. Shivshanker Gaurishanker AIR 1999 SC 2874
no appeal has been preferred,
(b) by a decree or order from (a)
which no appeal is allowed jurisdiction not vested in it by
by this Code, or law, or
(C) by a decision on a
reference from a court of
small causes, which passed
the decree or made the order,
and the court may make such
order thereon as it thinks fit,
may apply for a review of
judgment to the court.
court appears—
to have exercised a
(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.
(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 suitor other proceeding
before the Court except where
such suit or other proceeding is
stayed by the High Court.
3. EXPLAINATI -On an application by a party - Only High Court have power
ON aggrieved by any: of revision of any order or
 Any decree or order in decree made by the
which appeal has been subordinate court in the non-
allowed but not appealable matter.
preferred in the court - High court suo moto (on its
(not presented) own) have power of revision.
 Any decree or order In some cases on the
where no appeal lies. application of party can call
 By a decision on for revision. (Discretionary
reference power of High Court)
-The application of review - Revision of order or decre
lies in the same court that lies when the subordinate
passed the decree. court:
 Have acted outside
the jurisdiction vested
in it.
 Have failed to
exercise the
jurisdiction vested in
it.
 Have exercised
jurisdiction in
illegally or material
irregularity.
- High Court have power to
vary, reverse, any order in
deciding the suit, only
when it must be in favour
of the party applying for
revision.
- Revision will not lie when
an appeal from the
order/decree lies in the
High Court or any other
court.
4. RELATED 1. Supreme Court: Art. 137 1. High Court: Art. 227
PROVISION 2. High Court: Art. 227
FROM THE
CONSTITUTI
ON OF INDIA

5. PROCEDURE 1. Application by the 1. Application by the party.

parties to the same 2. Suo moto on its own court
judge exercise the revision power.

6. DIFFERENC a. Meaning: to re-examina, a. Meaning: re-examining over

ES reconsideration by the for correction or
same court. improvement.
 b. Any court, which passed b. The High Court, only, can
the decree or made exercise the power the
order, can review the revision of any case which
case. has been decided by any
c. Review can be made court subordinate21 to it.
when the matter is an c. Revision power can be
appealable. exercised only in non-
d. The review can be made appealable matter.
only one an application d. Revision power can be
by an aggrieved party. exercised by the High Court
e. Grounds: on an application (if court
I. Discovery of new permits on sufficient
evidence grounds) or on its own
II. Some apparent motion.
mistake or error e. Grounds:
on face of record. I. Fails to exercise a
III. Other sufficient jurisdiction
reason. II. Want of jurisdiction
III. Illegal or irregular
exercise of
jurisdiction.

7. LIMITATIO 30 DAYS from the date 90 days from the date of the
N of order or decree under decree or order of sentence
Section 124 of the sought to be revised. under
Limitation Act, 1963. section 131 of Limitation Act,
1963

 A petition of review can be made by any person who is aggrieved by

such judgement or order. It has been held that an aggrieved person
means a person who has suffered a legal grievance or against whom a
decision has been pronounced which has wrongfully deprived him of
something or wrongfully refused him something or wrongfully
affected his title to something.22

21

22 S.P. Gupta v. Union of India AIR 1982 SC 149