Code of Civil Procedure, 1908 (CPC)
Remand and Reference Distinguished
Both involve two courts and a case that is not yet finished, and they run in opposite directions. In a remand under Order XLI Rules 23 and 23A of the Code of Civil Procedure, 1908, an appellate court sends the whole case back down to be tried again. In a reference under Section 113 and Order XLVI, a subordinate court keeps the case and sends only a question of law up, and the answer comes back to it. One is a party's remedy in an appeal; the other is the court's own doubt. These notes compare them.
The case going down, and the question going up
1. Remand: Order XLI Rules 23 and 23A
§ The two rules (in substance) Rule 23. Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, with directions to re-admit the suit under its original number in the register of civil suits and proceed to determine the suit. Rule 23A. Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the Appellate Court shall have the same powers as it has under Rule 23. Rule 24. Where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment, it may finally determine the suit itself, notwithstanding that the judgment of the court below proceeded wholly on a ground other than that on which the Appellate Court proceeds. |
§ Four points • A remand requires a reversal. Both rules operate where the decree appealed from is reversed; a court that affirms does not remand. • Rule 24 is the preference. Where the evidence on record suffices, the appellate court is to decide the suit itself rather than send it back, because a remand costs years. • It is appealable, and must be appealed then. An order of remand is in the list at Order XLIII Rule 1(u), and Section 105(2) precludes a party who does not appeal it from disputing its correctness afterwards. • The suit is restored below. The trial court re-admits the suit under its original number and decides it afresh, on the issues the appellate court directs. |
2. Reference: Section 113 and Order XLVI
§ What it involves • The court's own doubt. The subordinate court, of its own motion or on a party's application, states a case on a question of law or usage having the force of law on which it entertains a reasonable doubt, and refers it with its own opinion. • The conditions in Order XLVI Rule 1. A pending suit, appeal or execution; a question of law or usage; a reasonable doubt; and a decree not subject to appeal, or an appeal not preferred. • Compulsory in one case. The proviso to Section 113 requires a reference where the court is satisfied that the case involves a question as to the validity of an Act, Ordinance or Regulation, that determining it is necessary, and that the provision is invalid but no superior court has so held. • The case does not move. Rule 2 allows the court to stay, or to pass a contingent decree, but it may not execute anything until the answer arrives; and Rule 3 requires it to dispose of the case conformably to the decision. |
3. The Two Compared
Basis | Remand, O. XLI RR. 23 and 23A | Reference, s. 113 and O. XLVI |
|---|---|---|
Direction | The whole CASE goes DOWN from the appellate court | Only a QUESTION goes UP, and the answer comes back down |
Who moves | A PARTY, in an appeal from a decree | THE COURT ITSELF, of its own motion or on a party's application |
When | After the suit has been decided and the decree reversed in appeal | While the case is still PENDING, before it is decided |
What is sent | The case, for re-trial on the issues directed | A statement of the case and the point of doubt, with the referring court's own opinion |
Who decides the suit afterwards | The TRIAL COURT, afresh | The SUBORDINATE COURT, conformably to the answer |
Is it appealable? | Yes, O. XLIII R. 1(u); and s. 105(2) requires it to be appealed then | The decision to refer is not itself a decree or an appealable order |
Precondition | A reversal of the decree, and a preliminary point or a necessary re-trial | A reasonable doubt on a question of law; or the validity of a statute under the proviso |
Effect on the record | The suit is re-admitted under its original number | The record stays with the referring court, which may stay or pass a contingent decree |
4. Two Related Powers Worth Keeping Apart
§ Both look like remand, and neither is • Order XLI Rule 25: framing issues and referring them for trial. Where the trial court has omitted to frame or try an issue, or to determine any question of fact essential to the right decision, the appellate court may frame the issues and refer them for trial to the trial court, which returns the evidence and its findings. The appeal remains pending in the appellate court, which then decides it; the case is not sent back for disposal. • Section 103 and Order XLII Rule 2. In a second appeal, the High Court may itself determine an issue not determined by the courts below, or wrongly determined by reason of a decision on a substantial question of law, where the evidence on record is sufficient. Again, the purpose is to avoid a remand. • The practical test. Ask where the proceeding will be decided. In a remand, below. Under Rule 25 and Section 103, above. |
5. Landmark Points
- Order XLI Rule 23. Remand where the suit was disposed of on a preliminary point and that decree is reversed in appeal.
- Order XLI Rule 23A. Remand in other cases where the decree is reversed and a re-trial is considered necessary.
- Order XLI Rule 24. Where the evidence on record suffices, the appellate court should determine the suit itself rather than remand.
- Order XLIII Rule 1(u) with Section 105(2). A remand order is appealable, and must be appealed then or its correctness cannot be disputed later.
- Section 113 with Order XLVI Rule 1. A reference requires a pending proceeding, a question of law, a reasonable doubt, and the referring court's own opinion.
- Order XLVI Rules 2 and 3. The case stays below, and the subordinate court disposes of it conformably to the High Court's decision.
- Order XLI Rule 25. Framing issues and referring them for trial is not a remand: the appeal remains pending above.
6. Frequently Asked Questions
What is the difference between remand and reference?
In a remand, an appellate court sends the whole case back down for a fresh trial after reversing the decree. In a reference, a subordinate court keeps the case and sends only a question of law up, and the answer comes back to it to decide the case conformably.
Who initiates each?
A remand is ordered on a party's appeal from a decree. A reference comes from the subordinate court itself, of its own motion or on a party's application, and rests on that court's own reasonable doubt on a question of law.
When may a court remand a case?
Under Order XLI Rule 23, where the suit was disposed of on a preliminary point and that decree is reversed. Under Rule 23A, where it was disposed of otherwise than on a preliminary point, the decree is reversed, and a re-trial is considered necessary.
Should a court remand where the evidence is sufficient?
No. Order XLI Rule 24 provides that where the evidence on record is sufficient to enable the appellate court to pronounce judgment, it may finally determine the suit itself, notwithstanding that the judgment below proceeded on a different ground.
Must a remand order be challenged immediately?
Yes, in effect. It is appealable under Order XLIII Rule 1(u), and Section 105(2) provides that a party aggrieved by an appealable order of remand who does not appeal is precluded from disputing its correctness afterwards.
Is framing issues under Order XLI Rule 25 a remand?
No. Under Rule 25 the appellate court frames issues and refers them for trial to the trial court, which returns the evidence and findings; the appeal remains pending above and is decided there. In a remand, the case goes back to be decided below.
7. Related Topics in This CPC Series
- Reference to the High Court: Section 113 and Order XLVI
- First Appeals: Sections 96 to 99A and Order XLI
- Second Appeals: Sections 100 to 103 and Order XLII
- Appeals from Orders: Sections 104 to 106 and Order XLIII