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APPEAL, REVIEW, REFERENCE AND REVISION[1]

Table of Contents

QUESTION BANK

Q.1. State provisions as to appeal, revision and review.

2. State the difference between appeal and revision.
3. State the difference between appeal and review.

Q.4. Explain provisions as to appeal from the original decree.

Q.5. Explain provisions as to the second appeal.

Q.6. Explain the provision to appeal to the High Court.

Q.7. Explain provisions to appeal to the Supreme Court.

SHORT NOTES

Appeal.
Review.
Revision.

SYNOPSIS

I APPEALS-

Essentials of an appeal-

A) Appeals from original decree/ or first appeal. S. 96-
B) Second Appeal-

1) When Second Appeal does not lie-

2) Power of the High Court to determine issues of fact (S. 103)-

3) Order from which appeal lies (S. 104)-

4) Powers of appellate Court (S. 107)-

C) Appeal to Supreme Court (S. 109)-
REVISION-
A) Revision Meaning:-
B) Ingredients of ‘revision’-

(a) exercised the justification not vested in it by the law –

(b) failed to exercise the jurisdiction vested in it by the law, or

C) Revisional jurisdiction is discretionary-

III. REVIEW (S. 114 O. XLVII)-

A) Review: Meaning:-
B) Distinction between ‘Appeal’ and ‘Revision’-

1) Where lies?

2) Exercise suo motu-

Discretionary-
Setting aside the findings of facts-
When abates?
C) Distinction between ‘revision’ and ‘review’-

(1) Which Court exercises power?

(2) Specific Court-

(3) When is the power to be exercised?

(4) Grounds-

(5) Whether appealable?

I. APPEA LS-

The term ‘appeal’ has not been defined in the C.P.C. However, it may be defined as “the judicial examination of the decision by a Higher Court of the decision of an inferior Court.”[2].

The Privy Council has defined it as “any application by a party of an appellate Court, asking to set aside or reverse a decision of a subordinate Court. It is a right to enter the Superior Court and invoke its aid and interposition to redress an error in the Court below.”[3].

According to the Oxford Dictionary, an appeal is “the transference of a case from an inferior to a higher Court or tribunal in the hope of reversing or modifying the decision of the formal”.

Ss. 96 to 112 and Orders 41 to 45 deal with the provisions of ‘appeal’.

Essentials of an appeal-

Every appeal has the following ingredients-

i) an adjudication of a suit by a Court
ii) an aggrieved person,

iii) A review body is ready and willing to entertain an appeal.

A) Appeals from original decree/ or first appeal[4]. (S. 96)-

According to S. 96, the right to appeal is recognised-

(a) from every decree passed by the Court of the original jurisdiction.

(b) from the original decree passed ex-parte.

However, no appeal shall lie from-

(a) The original decree if it is passed with the consent of the parties.

(b) the decree, if it is passed in petty suits, i.e. where the value of subject matter does not exceed ten thousand rupees.

An appeal against a decree passed by a court exercising ‘original jurisdiction’ is called a ‘first appeal’ or ‘appeal against original decree’. A ‘second appeal’ lies against a decree passed by a first appellate court”.

Who may file an appeal?

The following persons are entitled to file an appeal-

(i) A party to a suit or his representatives.

(ii) A person (even though not party to suit) claiming the transfer of a suit property in his favour from party to a suit.

(iii) A guardian appointed by the Court in a suit by or against a minor.

(iv) Any other person (with the leave of the Court), if he is adversely affected by the decree.

B) Second Appeal[5]–

Ss. 100 to 103 and Ss. 107 and 108 and O. XLII of the Code deal with the concept of the second appeal. The second appeals are the appeals from the decrees passed in the first appeal. A first appeal is maintainable on a question of fact, on a question of law, or on a mix of the question of fact and law, whereas a second appeal can be filed only on a substantial question of Law. A first appeal can be filed in a superior court, which may or may not be a High Court; a second appeal can be filed only in the High Court. In the case where the first appeal has been heard by a single judge of the High Court, the second appeal lies to the Division Bench of the same High Court as the ‘Letter Patent appeal’.

According to S. 100 of the Code, the following are the essentials of the second appeal- viz-

(i) The High Court must be satisfied that there involves a substantial question of law.

(ii) An appeal may lie from an appellate decree passed ex-parte.

(iii) the memorandum of appeal must precisely state the involvement of question as to the law in the appeal.

(iv) the High Court shall hear the appeal on a question of law as formulated alone, and the opposite party (i.e. Respondent) is to be allowed to argue that there involves no such question of law in the appeal.

Thus, the right of the second appeal is highly restricted by the formulation of the question of law and its determination.

1) When the Second Appeal does not lie-

In the following circumstances, the second appeal does not lie, viz-

(i) No second appeal except on the grounds mentioned in S. 100 (S. 101).

(ii) No second appeal when the subject matter of the suit is for recovery of money which does not exceed Rs. 25000/-

(iii) No second appeal lies from ‘order’; it lies from decree only.

2) Power of the High Court to determine issues of fact (S. 103)-

According to S. 103, the High Court may if the evidence on record is sufficient, determine any issue necessary for the disposal of the appeal-

(a) Which has not been defined by the lower appellate Court or both, by the Court of the first instance and the lower appellate Court, or

(b) Which has been wrongly determined by such Courts.

3) Order from which the appeal lies[6] (S. 104)-

104 provides that an appeal shall lie from the following orders-

(i) an order under S. 35 A (i.e. Compensatory costs in respect of false or vexatious claims or defences).

(ii) an order under S. 91 or S. 92 (i.e. issuance of public notice and public charities).

(iii) an order under S. 95 (i.e. compensation for obtaining arrest, attachment or injunction on sufficient grounds.)

(iv) an order under any of the provisions of the Code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in the execution of a decree.

(v) any order made under rules from which an appeal is expressly allowed by rules.

However, no appeal shall lie against any order passed in appeal under this section.

4) Powers of appellate Court (S. 107)-

107 lays down the powers of an appellate Court as follows-

(i) to determine a case finally.

(iii) to remand a case (to the original Court for further hearing, etc.).

(iv) to take additional evidence or if it requires that such evidence is to be taken.

In addition, the appellate Court shall have the same powers and shall perform the same duties as are conferred and imposed on the Court of original jurisdiction.

C) Appeal to Supreme Court (S. 109)-

109 provides the circumstances in which appeal from any judgment, decree or final order in a civil proceeding of a High Court shall lie to the Supreme Court.

It lays down that an appeal from a judgment, decree or final order shall lie to the Supreme Court if the High Court certifies-

(i) that the case involves a substantial question of law of general importance, and

(ii) that in the opinion of the High Court, the said question needs to be decided by the Supreme Court.

II. REVISION[7]–

A) Revision Meaning:-

“Revision’ means ‘the action of revision, especially critical or careful examination or perusal with a view to correcting or improving it”.

115 empowers the High Court with ‘revisional’ power. According to it, the High Court may call for the record of any case-

-which has been decided by any Court subordinate to such High Court,

-and in which no appeal lies thereto,

-and if such subordinate Court appears-

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

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

– The High Court may make such order in the case it thinks fits.

However, the High Court can not-

(i) vary or reverse any order except where the order (if it has been made in favour of the party applying for the revision) would have finally disposed of the suit or proceeding.

(ii) vary or reverse any decree or order against which an appeal lies either to the High Court or to any subordinate Court.

‘Revision’ does not ipso facto operate as a stay of the suit or proceeding unless such proceeding or suit is in fact, stayed by the High Court; while deciding ‘revision application’ High Court cannot enter into the merits of the evidence.

B) Ingredients of ‘revision’-

Following are the requirements of S. 115 (i.e. of revision by the High Court)-

(i) the case must have been decided by the Court,

(ii) the Court deciding the case must be subordinate to the High Court,

(iii) the decision must be such that no appeal lies to the High Court, and

(iv) the subordinate Court in deciding the case, must appear to have-

(a) exercised the justification not vested in it by the law[8], –

Subordinate Court is said to have exercised unauthorised jurisdiction if it-

(i) assumes jurisdiction beyond its pecuniary or territorial limit or by reason of difference of subject-matter of the suit (i.e. the subject matter not vested in the jurisdiction of the court.) or

(ii) entertains an appeal from an order which is not appealable; or

(iii) entertains a suit or appeal which it has no jurisdiction to entertain; or

(iv) making ultra-vires orders; or

(v) grant an injunction without considering whether a prima facie case is made or not; or

(vi) allows withdrawal of a suit on a ground not contemplated under (O. XXIII R. 1); or

(vii) directs a subordinate Court to try a suit not triable by it.

(b) failed to exercise the jurisdiction vested in it by the law[9], or

Where a Court having jurisdiction thinks that it has no jurisdiction and declines to exercise it, it is called a ‘failure to exercise jurisdiction.

(c) acted in the exercise of its jurisdiction illegally or with material irregularity[10].-

Exercising jurisdiction ‘illegally’ or ‘with material irregularity’ relates to (i) breach of some provision of law, (ii) material defect of some provisions of law, or (iii) material defect of the procedure.

C) Revisional jurisdiction is discretionary[11]–

The use of the word ‘may’ in S. 115 indicates that the exercise of revisional jurisdiction is discretionary. It is at the discretion of the High Court to exercise revisional jurisdiction.

III. REVIEW[12] (S. 114 O. XLVII)-

A) Review: Meaning:-

Review means ‘to look once again”. It is a re-consideration of judgment by the same Court under certain conditions. ‘Review’ is the exception to the general rule that “once a judgment is signed, the judge cannot change it”. In other words, the judge becomes functus officio[13] about that judgment.

114 lays down the rule of review. It lays down that any person considering himself aggrieved

(a) by a decree and order from which an appeal is allowed but from which no appeal has been preferred.

(b) by a decree or order from which no appeal is allowed,

-may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit.

According to R. 1 of O. XLVII, the following grounds for allowing ‘review’ are necessary, viz.

(i) notice to the opposite party to appear and to defend, and

(ii) Application is to be made on the ground of discovery of new matter or evidence, which the applicant alleges that it was not within his knowledge or could not be adduced by him when the decree was passed or the order was made.

B) Distinction between ‘Appeal’ and ‘Revision’-

Following are the differences between ‘appeal’ and ‘revision’-

1) Where lies?

An ‘appeal’ lies to the Superior Court from every original decree (unless expressly barred), while ‘revision’ lies only in the cases mentioned in S. 115 and to the High Court only.

2) Exercise suo motu-

The revisional jurisdiction can be exercised suo motu, while appellate jurisdiction cannot be exercised suo motu.

3. Discretionary-

The exercise of Revisional jurisdiction is discretionary, while the right of appeal is a substantive right.

4. Setting aside the findings of facts-

In the exercise of ‘revisional jurisdiction’, the Court cannot set aside the finding of facts of a subordinate Court, but a Court of Appeal can do so.

5. When abates?

An appeal abates if the legal representatives of the deceased are not brought on record within the time allowed by the law, whereas ‘revision’ does not so abate, and proper parties can be brought on record before the Court (at any time).

C) Distinction between ‘revision’ and ‘review’-

Following are the distinctions between ‘revision’ and ‘review’-

(1) Which Courts exercise power?

Superior Court, i.e., the High Court and, in some cases, District Court, exercise revisional power, whereas the Court that passed the decree or order can only review it.

(2) Specific Court-

The power of ‘revision’ is conferred on the High Court only and in some cases and in some States, on the District Court also, whereas ‘review’ can be done by any Court which passed the Judgment or order.

(3) When is the power to be exercised?

The power of ‘revision’ is exercised only in cases where no appeal lies, while ‘review’ can be done even when an appeal lies.

(4) Grounds-

The ‘revision’ lies on the grounds of jurisdiction, i.e., want of jurisdiction, failure to exercise jurisdiction or illegal or irregular exercise of jurisdiction. In contrast, the grounds of ‘review’ are the discovery of new and important matters of evidence’, some apparent mistakes or errors on the face of the record or any other sufficient reason.

(5) Whether appealable?

The appeal shall not lie from an order passed in the exercise of Revisional jurisdiction, while the order following the review application is appealable.

*****

[1] अपिल, पुनर्विलोकन, निर्देषन, पुर्नरिक्षण, [अपील, समीक्षा, संदर्भ और संशोधन]

[2] ‘अपिल’ म्हणजे कनिष्ठ न्यायालयांच्या निर्णयांचे वरिष्ठ न्यायालयाद्वारे न्यायिक परिक्षण. [‘अपील’ का अर्थ है निचली अदालतों के निर्णयों की उच्च न्यायालय द्वारा न्यायिक समीक्षा।]

[3] Nagendra Nath v. Suresh Chandra (AIR 1932 PC 165)

[4] मूळ हुकूमनाम्या विरूध्द अपिल किंवा पहिले अपिल, [मूल डिक्री के विरुद्ध अपील या प्रथम अपील,]

[5] दुसरे अपिल,

[6] कोणत्या आदेशा विरूध्द अपिल करता येते?, [किस आदेश के खिलाफ अपील किया जाता है?]

[7] पुर्ननिरिक्षण, [समीक्षा,]

[8] अधिकार नसताना अधिकाराचा वापर, [अधिकार के बिना अधिकार का प्रयोग,]

[9] अधिकार असताना अधिकाराचा वापर नाही [अधिकार होने परभी अधिकार का कोई उपयोग नहीं करना।]

[10] बेकायदेषीरपणे अधिकाराचा वापर [अधिकार का अवैध प्रयोग]

[11] पुर्ननिरिक्षणाचा अधिकार स्वेच्छाधीन अधिकार, [संशोधन विवेकाधीन शक्ति की शक्ति,]

[12] पुर्नअवलोकन, निकाल दिलेल्या न्यायालयानेच स्वतः च्या निर्णयाचे पुर्नअवलोकण करणे [पुनरीक्षण, न्यायनिर्णायक न्यायालय द्वारा अपने स्वयं के निर्णय की समीक्षा]

[13] बदल करण्यास असमर्थ [बदलने में असमर्थ]