Code of Civil Procedure, 1908 (CPC)
Review: Section 114 and Order XLVII CPC
A court that has delivered judgment is ordinarily done with the case. Section 114 of the Code of Civil Procedure, 1908 makes a narrow exception: the same court may review its own decree or order on the application of a person aggrieved. Order XLVII Rule 1 confines the exception to three grounds, and the whole subject turns on keeping those grounds narrow, because a wide power of review would make every judgment provisional. These notes cover the grounds, who may apply, the procedure, and the distinctions from appeal, revision and recall.
The three grounds of review, and the door that remains shut against an appeal in disguise
1. The Right of Review: Section 114
§ Section 114, CPC 1908 Subject as aforesaid, any person considering himself aggrieved — (a) by a decree or 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; or (c) by a decision on a reference from a Court of Small Causes, 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. |
§ Three points on the section Each defines the remedy: • It lies to the same court. Review is not a remedy in a superior forum; the court that passed the decree reconsiders it. That is why the grounds must be narrow, and why the judge who decided the case ordinarily hears the review. • The three categories in clauses (a) to (c). A decree from which an appeal is allowed but has not been preferred; a decree from which no appeal is allowed; and a decision on a reference from a Court of Small Causes. A person who has already preferred an appeal is outside clause (a), because the matter is now before the appellate court. • Any person considering himself aggrieved. The applicant need not be a party in every case, but he must be aggrieved, that is, prejudicially affected by the decree, and a stranger with only an indirect interest does not qualify. |
2. The Three Grounds: Order XLVII Rule 1
§ Order XLVII Rule 1(1), CPC 1908 (in substance) Any person considering himself aggrieved, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order. Explanation. The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment. |
(a) Discovery of new and important matter or evidence
Three conditions, and the third does most of the work. The matter or evidence must be new, in the sense that it was not before the court. It must be important, that is, capable of affecting the decision, not merely cumulative. And its non-production must be excused: the applicant must show that, after the exercise of due diligence, it was not within his knowledge or could not be produced at the time. A party who simply failed to look, or chose not to file what he had, does not satisfy the rule. The requirement mirrors Order XLI Rule 27(1)(aa) for additional evidence in appeal, and for the same reason: a litigant gets one opportunity to place his material before the court.
(b) Mistake or error apparent on the face of the record
The error must be self-evident, apparent from the record itself, and demonstrable without any elaborate argument. An arithmetical miscalculation, an oversight of a statutory provision that governs the case, a decree that contradicts the judgment, or a finding recorded against a party on a point that was never in issue are the familiar instances. What is not such an error is a point on which two views are reasonably possible: where the applicant must argue at length to show that the court was wrong, he is arguing an appeal, and the ground fails. The Explanation puts one common situation beyond doubt: a later decision of a superior court in another case reversing the law applied is not a ground for review.
(c) Any other sufficient reason
The words are general, and the settled approach reads them ejusdem generis with the two specific grounds: a sufficient reason must be one analogous to the discovery of new matter or an error apparent on the record, not a reason at large. Recognised instances include a decree passed without notice to a party, a party prevented from appearing by circumstances beyond his control, and a judgment that has omitted to deal with a claim or a defence that was raised. What the words do not permit is a rehearing of the merits.
3. Review Is Not an Appeal in Disguise
§ The line, and why it is drawn where it is What review is. A limited power in the same court to correct a decision that is defective in one of the three ways the rule names, so that a manifest injustice is not left standing merely because the appellate route is unavailable or inconvenient. What review is not. A rehearing. The court does not reconsider the evidence, does not re-examine the reasoning, and does not substitute a better view for the one it took. A party who says the court weighed the evidence wrongly, or applied the law wrongly in a way that needs argument to demonstrate, has a ground of appeal, not of review. Why the line matters. The same judge is being asked to undo his own decision. Without a narrow rule, every losing party would apply, every judgment would be provisional, and finality would disappear. The test in practice: can the defect be shown by pointing at the record, or does it need to be argued? If it must be argued, it is an appeal point. |
4. Procedure: Order XLVII Rules 2 to 9
Rule | What it provides |
|---|---|
Rule 2 | An application for review of a decree or order of a court, not being a High Court, upon some ground other than the discovery of new and important matter or evidence, or the existence of a clerical or arithmetical mistake or error apparent on the face of the decree, shall be made only to the judge who passed the decree or made the order |
Rule 3 | The provisions as to the form of preferring appeals shall apply, mutatis mutandis, to applications for review |
Rule 4 | Where the court sees no sufficient ground for a review, it shall reject the application; where it sees such ground, it shall GRANT the application, but not without previous notice to the opposite party to enable him to appear and be heard |
Rule 4(2), proviso | An application for review on the ground of the discovery of new matter shall not be granted without strict proof of the allegation that it was not within the applicant's knowledge or could not be adduced by him when the decree was passed |
Rule 5 | Where the judge who passed the decree has ceased to be attached to the court, or is precluded by absence or other cause from considering it, the application may be disposed of by his successor |
Rule 7 | An order REJECTING an application for review shall not be appealable; but an order GRANTING an application may be objected to on specified grounds, and is appealable under Order XLIII Rule 1(w) |
Rule 8 | When an application for review is granted, a note thereof shall be made in the register, and the court may at once rehear the case or make such order as it thinks fit |
Rule 9 | NO APPLICATION FOR REVIEW of an order made on an application for a review, or of a decree or order passed or made on a review, shall be entertained |
§ Four procedural points regularly examined • Limitation. An application for review must be made within thirty days from the date of the decree or order, under Article 124 of the Limitation Act, 1963. • No second review: Rule 9. No review lies of an order made on a review application, or of a decree passed on review. The remedy is exhausted once. • Appealability is asymmetric: Rule 7. An order rejecting a review is not appealable. An order granting one is, under Order XLIII Rule 1(w), and it may be objected to on the ground that the application was in breach of the rule as to time or notice, or on grounds of the kind Rule 7 specifies. • Review after appeal. Section 114(a) covers a decree from which an appeal is allowed but has not been preferred. Once an appeal has been filed and decided, the trial decree merges in the appellate decree and the trial court has nothing left to review; the review, if any, lies to the appellate court in respect of its own decree. |
5. Review, Appeal, Revision and Recall
Basis | Review | Appeal | Revision | Recall |
|---|---|---|---|---|
Which court | The same court that passed the decree | A superior court | The High Court | The same court |
Source | Section 114 and Order XLVII | Sections 96, 100 and 104 | Section 115 | Order IX Rule 13, Order XLI Rule 21, and Section 151 |
Ground | New matter, error apparent on the record, or any other sufficient reason | Any error of fact or law, within the scope of the appeal | An error of jurisdiction, not of merits | That the order was passed without jurisdiction over the person, or in his absence, or was obtained by fraud |
What is reconsidered | The decree, on the limited ground only | The case, within the scope of the appeal | The order complained of | Whether the order should stand at all, not its correctness |
Merits | Not reopened | Reopened | Not reopened | Not reached |
Further remedy | Rule 9: no second review | A second appeal where one lies | None from the revisional order in the ordinary course | Governed by the provision under which the recall is sought |
The recall column is worth a word, because it is often confused with review. A recall is not a reconsideration of the decision at all: it is an application to set aside an order that ought never to have been passed against the applicant, as where he was not served, or was prevented from appearing, or the order was obtained by fraud on the court. The court does not ask whether it decided correctly; it asks whether it should have decided at all in those circumstances. Review asks the first question, recall the second.
6. Landmark Points
- Section 114. Review lies to the same court, in three situations: a decree from which an appeal is allowed but not preferred, one from which no appeal is allowed, and a decision on a reference from a Court of Small Causes.
- Order XLVII Rule 1. Three grounds: new and important matter or evidence not within knowledge or producible despite due diligence, a mistake or error apparent on the face of the record, and any other sufficient reason.
- The Explanation to Rule 1. A subsequent decision of a superior court in another case reversing the law applied is not a ground for review.
- Any other sufficient reason is read ejusdem generis with the two specific grounds.
- Order XLVII Rule 7. An order rejecting a review is not appealable; an order granting one is appealable under Order XLIII Rule 1(w).
- Order XLVII Rule 9. No second review: no review lies of an order made on a review, or of a decree passed on review.
- Article 124, Limitation Act, 1963. Thirty days from the date of the decree or order.
7. Frequently Asked Questions
Who may apply for a review?
Any person considering himself aggrieved by a decree or order from which an appeal is allowed but has not been preferred, by one from which no appeal is allowed, or by a decision on a reference from a Court of Small Causes. He must be prejudicially affected by the decree.
What are the grounds of review?
Three: the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant's knowledge or could not be produced; some mistake or error apparent on the face of the record; and any other sufficient reason, read as analogous to the first two.
What is an error apparent on the face of the record?
A self-evident error, visible from the record itself and demonstrable without elaborate argument, such as an arithmetical mistake, an oversight of a governing statutory provision, or a decree that contradicts the judgment. A point on which two views are reasonably possible is not such an error.
Is review an appeal in disguise?
No, and it must not become one. The court does not reconsider the evidence or substitute a better view for the one it took. Where the defect must be argued rather than pointed at, the remedy is an appeal, not a review.
Can a later Supreme Court decision be a ground for review?
No. The Explanation to Order XLVII Rule 1 provides that the reversal or modification, by a subsequent decision of a superior court in any other case, of the decision on a question of law on which the judgment is based, shall not be a ground for review.
Is an order on a review application appealable?
Asymmetrically. Under Order XLVII Rule 7 an order rejecting an application for review is not appealable, while an order granting one is appealable under Order XLIII Rule 1(w) and may be objected to on the grounds Rule 7 specifies.
Can there be a second review?
No. Order XLVII Rule 9 provides that no application for review of an order made on an application for review, or of a decree or order passed or made on a review, shall be entertained.
What is the difference between review and recall?
Review asks whether the court decided correctly, on one of the three narrow grounds. Recall asks whether the order should have been passed against the applicant at all, as where he was not served, was prevented from appearing, or the order was obtained by fraud. Recall does not reach the merits.
8. Related Topics in This CPC Series
- Revision under Section 115
- Reference: Section 113 and Order XLVI
- First Appeals: Sections 96 to 99A and Order XLI
- Setting Aside an Ex Parte Decree under Order IX Rule 13