All NotesCivil LawCode of Civil Procedure, 1908 (CPC)

Code of Civil Procedure, 1908 (CPC)

Appeal, Review, Revision, Reference and Recall Compared

Five different things can happen after, or during, a decision of a civil court, and examination questions set them against each other in every combination. Appeal takes the case to a superior court. Review asks the same court to correct a defect. Revision asks the High Court to correct an excess of jurisdiction. Reference comes from the court's own doubt before the case is decided. Recall asks whether the order should have been passed at all. These notes set out all five, and then take the pairings one by one.

The five remedies set against each other, and the four questions that sort them

1. The Five in Outline

Remedy

Provision

What it does

Appeal

Sections 96, 100 and 104

A superior court rehears the case, within the scope the statute allows, and passes its own decree

Review

Section 114 and Order XLVII

The SAME court reconsiders its own decree, on three narrow grounds only

Revision

Section 115

The High Court corrects an error of jurisdiction by a subordinate court, where no appeal lies

Reference

Section 113 and Order XLVI

The subordinate court itself sends up a question of law on which it entertains a reasonable doubt, while the case is pending

Recall

Order IX Rule 13, Order XLI Rule 21, Section 151

The same court sets aside an order that ought not to have been passed against the applicant at all

2. Appeal and Review

Basis

Appeal

Review

Which court

A superior court

The same court that passed the decree

Ground

Any error of fact or law, within the scope of the appeal

New and important matter, error apparent on the face of the record, or any other sufficient reason

Merits

Reopened

Not reopened: the court corrects a defect, it does not rehear

Limitation

Ninety or thirty days, Articles 116 and 117

Thirty days, Article 124

Where both lie

Section 114(a): review is available where an appeal is allowed but has NOT been preferred

Once an appeal is preferred and decided, the trial decree merges and there is nothing left to review

The caution

A ground of appeal is not a ground of review

Review must not become an appeal in disguise

3. Appeal and Revision

Basis

Appeal

Revision

Nature

A RIGHT conferred by statute

DISCRETIONARY: the High Court may make such order as it thinks fit

Ground

Error of fact or law

The three jurisdictional grounds in Section 115, not the merits

When it lies

Where the statute gives an appeal

Section 115(2): only where NO appeal lies

What is reconsidered

The case, within the appeal's scope

The order complained of, on jurisdiction

Further limit

None beyond the statute

The 1999 proviso: no interlocutory order is varied unless correcting it would have finally disposed of the suit

Stay

Order XLI Rule 5: not automatic, and only on conditions

Section 115(3): a revision does not operate as a stay unless the High Court stays the proceeding

4. Review and Revision

Basis

Review

Revision

Which court

The SAME court

The HIGH COURT, over a subordinate court

What is wrong

A defect in the decision: new matter, an error apparent, or another sufficient reason

An excess or failure of jurisdiction, or an illegal or materially irregular exercise of it

Who may seek it

Any person considering himself aggrieved, within Section 114(a) to (c)

The aggrieved party, though the High Court may also act of its own motion

Merits

Not reopened

Not reopened

Limitation

Thirty days, Article 124

Ninety days, Article 131

Repetition

Order XLVII Rule 9: no second review

No express bar, but a second revision on the same point is not entertained

5. Review and Recall

§ The question each asks

Review asks whether the court decided CORRECTLY, and only on the three grounds in Order XLVII Rule 1: new and important matter, an error apparent on the face of the record, or any other sufficient reason read as analogous to those two.

Recall asks whether the order should have been passed AGAINST THE APPLICANT AT ALL. It does not reach the merits. The typical grounds are that he was never served, that he was prevented from appearing, or that the order was obtained by fraud on the court.

The provisions differ accordingly. A recall of an ex parte decree is sought under Order IX Rule 13; of an appeal dismissed for the appellant's default, under Order XLI Rule 19; and where no rule fits, under Section 151.

And so do the consequences. A successful review produces a reconsidered decree; a successful recall wipes out the order and the proceeding resumes from the point at which the applicant was shut out.

6. Reference, Review and Revision

Basis

Reference, s. 113

Review, s. 114

Revision, s. 115

Who moves

THE COURT ITSELF, of its own motion or on a party's application

The aggrieved party

The aggrieved party

When

While the case is PENDING, before decision

After the decree or order

After a case has been decided

To which court

The High Court

The SAME court

The High Court

What goes up

A QUESTION of law, with the referring court's own opinion

Nothing goes up; the same court reconsiders

The record of the case decided

The ground

A reasonable doubt on a question of law or usage; or the validity of a statute under the proviso

New matter, error apparent, or other sufficient reason

Jurisdiction not vested, failure to exercise it, or illegal or irregular exercise

Who decides the case

The SUBORDINATE court, conformably to the answer

The same court

The subordinate court, after the order is corrected

Compulsory?

Discretionary in the body of the section; COMPULSORY under the proviso where a statute is thought invalid

Discretionary on the stated grounds

Discretionary

7. The Four Questions That Sort Any Problem

§ Applied in order, these dispose of almost every question set on this topic

• WHO IS MOVING? Only reference comes from the court's own doubt. The other four are moved by a party.

• IS THE CASE STILL PENDING? Only reference operates before the case is decided. The rest come afterwards.

• WHICH COURT ACTS? Review and recall go back to the same court. Appeal, revision and reference go to a superior one.

• ARE THE MERITS REOPENED? Only in an appeal. Review corrects a defect, revision corrects an excess of jurisdiction, recall addresses the fact of the order rather than its correctness.

8. Landmark Points

- Appeal: Sections 96, 100 and 104; a superior court, on the merits, within the statutory scope.

- Review: Section 114 and Order XLVII Rule 1; the same court, on three narrow grounds, within thirty days, and never as an appeal in disguise.

- Revision: Section 115; the High Court, on jurisdictional grounds, only where no appeal lies, subject to the 1999 proviso.

- Reference: Section 113 and Order XLVI; the court's own doubt, sent up while the case is pending, and the answer binds it.

- Recall: Order IX Rule 13, Order XLI Rule 19 and Section 151; whether the order should have been passed against the applicant at all.

- Order XLVII Rule 9. No second review, and no review of a decree passed on review.

- Section 115(2) and (3). No revision where an appeal lies, and a revision does not operate as a stay.

9. Frequently Asked Questions

What is the difference between an appeal and a review?

An appeal goes to a superior court and reopens the merits within the scope the statute allows. A review is an application to the same court that passed the decree, on three narrow grounds, and it corrects a defect rather than rehearing the case.

What is the difference between an appeal and a revision?

An appeal is a right conferred by statute and addresses errors of fact and law. A revision is a discretionary supervisory power of the High Court, exercised only on jurisdictional grounds, only where no appeal lies, and subject to the 1999 proviso.

How does a review differ from a revision?

Review is an application to the same court on the grounds in Order XLVII Rule 1. Revision is the High Court's supervisory power over a subordinate court, exercised on the three jurisdictional grounds in Section 115. Neither reopens the merits.

What is the difference between review and recall?

Review asks whether the court decided correctly, on the three stated grounds. Recall asks whether the order should have been passed against the applicant at all, as where he was never served, was prevented from appearing, or the order was obtained by fraud.

How is a reference different from all the others?

It is the only one that comes from the court itself rather than from a party, and the only one that operates while the case is still pending. The subordinate court sends up a question of law on which it entertains a reasonable doubt, and then decides the case conformably to the answer.

Can a party seek both an appeal and a review?

Section 114(a) allows a review where an appeal is allowed but has not been preferred. Once an appeal has been preferred and decided, the trial decree merges in the appellate decree, and there is nothing left in the trial court to review.

Which of the five is compulsory in any situation?

Reference, under the proviso to Section 113. Where a court is satisfied that a case involves a question as to the validity of an Act, Ordinance or Regulation, its determination is necessary, and it thinks the provision invalid but no superior court has so held, it shall state a case and refer it.

10. Related Topics in This CPC Series

- Reference to the High Court: Section 113 and Order XLVI

- Review under Section 114 and Order XLVII

- Revision under Section 115

- First Appeals: Sections 96 to 99A and Order XLI