Judgment, Appeal, Review, Revision and Reference

Section 2(14): "order" means the formal expression of any decision of a civil court which is not a decree.

The relation between the three

The judgment carries the reasons. The decree carries the result. An order is defined by what it is not.

That single line answers most questions on this group. A judgment explains why; a decree is the formal document drawn up afterwards recording what follows; and anything a civil court formally decides is either a decree or, if it is not a decree, an order.

What a judgment must contain

Order XX rule 4(2) requires a judgment of a court other than a Court of Small Causes to contain a concise statement of the case, the points for determination, the decision on those points, and the reasons for the decision. Rule 5 requires the court to state its finding or decision, with the reasons, on each separate issue.

The last requirement is the one worth remembering: reasons on each issue. A judgment that decides the suit without dealing with an issue that was framed is defective, and that is a ground of appeal.

Appeal

What it is

An appeal is the removal of a case from an inferior to a superior court for the purpose of testing the soundness of the decision. It is a continuation of the suit, not a new proceeding, and it is a creature of statute: there is no inherent right of appeal, so an appeal lies only where some law gives it.

First appeal

Section 96(1): save where otherwise expressly provided in the Code or by any other law, an appeal shall lie from every decree passed by any court exercising original jurisdiction to the court authorised to hear appeals from its decisions.

Three limits sit in the rest of the section. Section 96(2): an appeal may lie from an original decree passed ex parte. Section 96(3): no appeal shall lie from a decree passed with the consent of parties. Section 96(4): no appeal shall lie, except on a question of law, from a decree in a suit of the nature cognisable by Courts of Small Causes where the value of the subject matter does not exceed ten thousand rupees.

A first appeal is on both facts and law. The appellate court can reappraise the evidence and reach a different conclusion on the facts. Order XLI is the procedure.

Second appeal

Section 100(1): save as otherwise expressly provided in the Code or any other law, an appeal shall lie to the High Court from every decree passed in appeal by any court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.

Two consequences follow, and both are examinable. A second appeal is not available on facts, so concurrent findings of fact by the trial court and the first appellate court are ordinarily final. And the High Court must formulate the substantial question of law, and the appeal is heard on the question so formulated.

Appeals higher up

Appeals from orders lie under section 104 and Order XLIII, and only from the orders those provisions list. Appeals to the Supreme Court lie under articles 132, 133 and 134 of the Constitution with a certificate from the High Court, and under article 136 the Supreme Court may in its discretion grant special leave to appeal from any judgment, decree, determination, sentence or order of any court or tribunal, which is a discretionary power and not a right of appeal at all.

Review

What it is

A review is an application to the same court, by a person aggrieved, asking it to reconsider its own decree or order.

Section 114: subject as aforesaid, any person considering himself aggrieved by a decree or order from which an appeal is allowed but from which no appeal has been preferred, or by a decree or order from which no appeal is allowed, or 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.

The grounds

Section 114 gives the right; Order XLVII rule 1 gives the grounds. A person within one of the three categories above may apply for review where one of these is satisfied:

One, 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. Note the two conditions: the material must be new AND important, and due diligence must have been exercised. A party who simply forgot to lead the evidence fails.

Two, some mistake or error apparent on the face of the record. This means an error that is self-evident and does not need a long argument to establish. A wrong section number, an arithmetical slip, a decision given in ignorance of a binding provision. It does not mean an error that has to be demonstrated by reasoning, because that is what an appeal is for.

Three, any other sufficient reason, which the courts read as a reason analogous to the first two rather than as an open door.

Revision

What it is

A revision is the High Court's supervisory check on whether a subordinate court kept within its jurisdiction.

Section 115(1): the High Court may call for the record of any case which has been decided by any court subordinate to it and in which no appeal lies to it, and if the 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 (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.

A proviso, inserted in 1999, restricts it further: the High Court shall not 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 proceeding. Section 115(2) bars revision where an appeal lies to the High Court or to a court subordinate to it, and section 115(3) provides that a revision does not operate as a stay unless the High Court so orders.

The three grounds are all about jurisdiction

This is the whole point of revision and it is where answers go wrong. The High Court in revision is not asking whether the decision was right. It is asking whether the subordinate court had the authority to decide, whether it refused to use authority it had, or whether it used its authority illegally or with material irregularity.

A subordinate court that has jurisdiction and reaches a conclusion the High Court thinks wrong has not committed a jurisdictional error. That is a matter for appeal, where one lies, and if none lies the decision ordinarily stands.

Alongside section 115 sits article 227 of the Constitution, which gives every High Court superintendence over all courts and tribunals throughout the territories over which it exercises jurisdiction. It is wider than section 115 and is exercised sparingly.

Reference

What it is

A reference is the subordinate court's own act. It does not involve a party going upstairs; the court itself sends a question to the High Court because it is unsure of the answer.

Section 113: subject to such conditions and limitations as may be prescribed, any court may state a case and refer the same for the opinion of the High Court, and the High Court may make such order thereon as it thinks fit.

The proviso is the important half. Where a court is satisfied that a case pending before it involves a question as to the validity of any Act, Ordinance or Regulation, or of any provision in one, the determination of which is necessary for the disposal of the case, and is of opinion that the provision is invalid or inoperative but it has not been so declared by the High Court to which that court is subordinate or by the Supreme Court, the court shall state a case setting out its opinion and the reasons, and refer it for the opinion of the High Court.

That is a rule of judicial discipline. A subordinate court may not simply declare a statute invalid; it must refer the question up.

Order XLVI sets out the procedure: the court states the facts, the point on which doubt is entertained and its own opinion on the point, and may either stay the proceedings or proceed and postpone the decree or order.

A worked example

The court of a Civil Judge, Junior Division, at Kalyan decides a suit for possession in favour of Manoj against Farida.

Farida thinks the judge misread the evidence. That is a challenge on the facts. Her remedy is a first appeal under section 96 to the District Court, which can look at the evidence afresh.

The District Court dismisses her appeal and she still says both courts were wrong on the facts. She has no further remedy on the facts: section 100 allows a second appeal to the High Court only if the case involves a substantial question of law.

Instead, after the trial court's decree, Farida finds the registered sale deed of 1998 in her late father's papers. It was not within her knowledge, she could not have produced it despite due diligence, and it is important. Her remedy is a review to the very court that passed the decree, under section 114 read with Order XLVII rule 1, first ground.

Suppose instead the trial court had passed an order on an interlocutory application, no appeal lay from it, and the court had decided a matter that lay outside its pecuniary jurisdiction altogether. That is not "wrong", it is jurisdictional. The remedy is a revision to the High Court under section 115(1)(a), and, because of the 1999 proviso, only if an order the other way would have finally disposed of the suit.

Now suppose that during the trial Farida had argued that the State Act under which Manoj claimed was itself invalid, and the judge agreed but found no ruling of the High Court or the Supreme Court saying so. The judge cannot declare the Act invalid. Under the proviso to section 113 he must state a case and make a reference to the High Court for its opinion.

Four different faults, four different remedies. That is the map.

Distinctions table

What these words do NOT mean

A judgment is not a decree. The judgment gives reasons; the decree follows from it and is drawn up separately. Limitation for an appeal runs by reference to the decree.

A review is not an appeal to the same court. The grounds are narrow. A party who simply disagrees with the reasoning has no ground of review, and saying "the court was wrong" is not "an error apparent on the face of the record".

A revision is not a second appeal. The High Court in revision does not ask whether the decision was correct; it asks whether the court kept within its jurisdiction.

A reference is not a remedy of a party. No litigant "files a reference". The court states the case.

An appeal is not available as of right against everything. It is a creature of statute: no provision, no appeal. That is why section 104 and Order XLIII list the orders that are appealable, and everything not listed is not.

Limits and criticism

The 1999 proviso to section 115 narrowed revision sharply. It was intended to stop interlocutory orders being carried to the High Court and delaying trials; the criticism is that a party facing a plainly jurisdictional error in an interlocutory order may now be left with only article 227, which is discretionary.

"Error apparent on the face of the record" resists definition, and courts have said that no exhaustive definition is possible. The working test is whether the error can be seen without an elaborate argument.

Second appeals are frequently entertained on questions dressed up as questions of law. Section 100 requires a substantial question of law and requires it to be formulated, and the requirement is not always observed.

Quick revision

Judgment: CPC s.2(9), the statement by the Judge of the grounds of a decree or order. Decree, s.2(2). Order, s.2(14), anything formally decided that is not a decree. Order XX rr.4 and 5: concise statement of the case, points for determination, the decision, and reasons on each issue.

Appeal: a creature of statute, a continuation of the suit. First appeal, s.96, on facts and law; no appeal from a consent decree, s.96(3). Second appeal, s.100, only on a substantial question of law, which must be formulated. Appeals from orders, s.104 and Order XLIII. Special leave, article 136.

Review: s.114 and Order XLVII r.1. Same court. Grounds: new and important evidence not available despite due diligence; error apparent on the face of the record; any other sufficient reason.

Revision: s.115. High Court, where no appeal lies to it. Three jurisdictional grounds: jurisdiction not vested, jurisdiction not exercised, jurisdiction exercised illegally or with material irregularity. 1999 proviso: only where the order the other way would have finally disposed of the suit. Article 227 sits alongside.

Reference: s.113 and Order XLVI. The court refers, not a party. Mandatory under the proviso where the court thinks an Act invalid and no High Court or Supreme Court ruling says so.

Test yourself

1. Define judgment, decree and order, and state the relation between them.

Section 2(9) of the Code of Civil Procedure 1908 defines a judgment as the statement given by the Judge of the grounds of a decree or order. Section 2(2) defines a decree as the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties as to all or any of the matters in controversy in the suit, and it may be preliminary or final. Section 2(14) defines an order as the formal expression of any decision of a civil court which is not a decree. The judgment carries the reasons, the decree carries the result, and an order is the residue: whatever a civil court formally decides is one or the other.

2. Distinguish review from revision.

A review under section 114 and Order XLVII rule 1 is heard by the same court that passed the decree, at the instance of an aggrieved party, on three narrow grounds: new and important evidence that could not be produced despite due diligence, an error apparent on the face of the record, or any other sufficient reason. A revision under section 115 is heard by the High Court over a subordinate court whose decision is not appealable to it, and only on jurisdictional grounds: that the court exercised a jurisdiction not vested in it, failed to exercise one that was, or acted illegally or with material irregularity in the exercise of jurisdiction. Review reconsiders the decision; revision examines the authority to decide.

3. When does a second appeal lie, and what cannot be argued in it?

Under section 100 a second appeal lies to the High Court from every decree passed in appeal by a subordinate court only if the High Court is satisfied that the case involves a substantial question of law, and the High Court must formulate that question. What cannot be argued is the facts: concurrent findings of fact by the trial court and the first appellate court are ordinarily final, and re-appreciation of evidence is not open in a second appeal.

4. What is a reference, and when is a court bound to make one?

A reference under section 113 is the act of the court itself, which states a case and refers a question for the opinion of the High Court, the High Court then making such order as it thinks fit. Under the proviso the court is bound to refer where a case before it involves a question as to the validity of an Act, Ordinance or Regulation or of a provision in one, the determination of which is necessary to dispose of the case, and the court is of opinion that the provision is invalid or inoperative although no such declaration has been made by the High Court to which it is subordinate or by the Supreme Court.

5. Is there a right of appeal against every decision of a civil court?

No. An appeal is a creature of statute and exists only where a law gives it. Section 96 gives an appeal from a decree of a court of original jurisdiction, subject to exceptions such as a consent decree under section 96(3). Against orders, an appeal lies only from those listed in section 104 and Order XLIII; every other order is not appealable, and the party's remedy, if any, is a revision under section 115 or the High Court's power of superintendence under article 227.

6. Give two examples of an "error apparent on the face of the record" and one that is not.

An arithmetical mistake in computing the decretal amount, and a decision reached in ignorance of a statutory provision that plainly governs the case, are errors apparent on the face of the record because they can be seen at once without argument. A finding that the plaintiff's witness was more credible than the defendant's is not, however wrong a party thinks it is, because establishing the error would need a re-examination of the evidence, and that is the office of an appeal rather than of a review.