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APPEAL, REVIEW, REFERENCE AND REVISION
QUESTION BANK
Q.1. State provisions as to appeal, revision and review.
Q. 2. State the difference between appeal and revision.
Q. 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
1. Appeal.
2. Review.
3. Revision.
SYNOPSIS
I. APPEALS
A. Conceptual Understanding and Legal Definitions
B. Essentials of an Appeal
C. First Appeals: Appeals from Original Decrees (Section 96)
Persons Entitled to File an Appeal
D. Second Appeals (Sections 100 to 103)
According to Section 100 of the CPC, the essential conditions governing a second appeal are as follows:
F. Bars on Second Appeals
G. Power of the High Court to Determine Issues of Fact (Section 103)
H. Appeals from Orders (Section 104 and Order XLIII)
I. General Powers of an Appellate Court (Section 107)
J. Appeals to the Supreme Court (Section 109)
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II. REVISION
A. Meaning and Statutory Scope
B. Ingredients of Revision
C. Dimensions of Jurisdictional Error
D. Discretionary Nature of Revisional Jurisdiction
III. REVIEW
A. Meaning, Scope, and Grounds (Section 114 and Order XLVII)
IV. COMPARATIVE ANALYSIS OF REMEDIES
A. Distinction Between Appeal and Revision
1. Where lies?
2. Exerecise suo motu-
3. Nature of remedy-
4. Setting aside finding of facts-
5. Effect on proceeding if legal representatives are not brought on record.
B. Distinction Between Revision and Review
1. The court exercising powers-
2. When power is to be exercised-
3. Grounds-
4. Applicability-
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I. APPEALS
A. Conceptual Understanding and Legal Definitions
The term 'appeal' has not been explicitly defined anywhere within the text of the Code of Civil Procedure, 1908 (CPC). In general legal parlance, however, it may be understood as the judicial examination of a decision of an inferior court by a higher court.
The Judicial Committee of the Privy Council elegantly captured this essence in the landmark case of Nagendra Nath Dey v. Suresh Chandra Dey [AIR 1932 PC 165], defining an appeal as "any application by a party to an appellate court, asking it to set aside or reverse a decision of a subordinate court." The Privy Council further observed that an appeal represents the right of entering a superior court and invoking its aid and interposition to redress an error committed by the court below.
Additionally, according to the Oxford Dictionary, an appeal is defined as "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 former." Under the scheme of the CPC, the substantive and procedural provisions governing appeals are spread across Sections 96 to 112, read in conjunction with Orders XLI to XLV of the First Schedule.
B. Essentials of an Appeal
To constitute a valid appeal, every proceeding must fundamentally satisfy the following legal ingredients:
1. An adjudication must have been made in a suit by a court of law.
2. There must be an aggrieved person who has suffered a legal injury due to such adjudication.
3. A review body or a superior judicial forum must be ready, willing, and statutorily empowered to entertain the said appeal.
C. First Appeals: Appeals from Original Decrees (Section 96)
Section 96 of the CPC recognizes and guarantees the right to appeal from every decree passed by a court exercising original jurisdiction. It explicitly states that an appeal shall lie from an original decree passed ex-parte.
However, this right is not absolute and is subjected to statutory restrictions. No appeal shall lie from an original decree passed by the court with the consent of the parties, as crystallized under Section 96(3), based on the doctrine of estoppel. Furthermore, Section 96(4) bars appeals in petty suits where the value of the subject matter of the original suit does not exceed ten thousand rupees, unless a question of law is involved.
An appeal directed against a decree passed by a court exercising original jurisdiction is technically designated as a 'first appeal' or an 'appeal against an original decree'. Conversely, a 'second appeal' is a subsequent recourse that lies only against a decree passed by a first appellate court.
Persons Entitled to File an Appeal
The right to file an appeal is restricted to specific categories of persons who possess the requisite locus standi. The following persons are legally entitled to prefer an appeal:
1. Any party to the suit whose interests are adversely affected by the decree, or their legal representatives in the event of their demise.
2. A person, even if not an original party to the suit, who claims a transfer of the suit property in their favour from a party to the suit, thereby stepping into their shoes.
3. A guardian ad litem appointed by the court in a suit instituted by or against a minor or a person of unsound mind.
4. Any other third party, provided they obtain the explicit leave of the appellate court, if they can successfully demonstrate that they are prejudicially and adversely affected by the operation of the decree.
D. Second Appeals (Sections 100 to 103)
Sections 100 to 103, Sections 107 and 108, along with Order XLII of the CPC, govern the statutory framework of second appeals. A second appeal is an appeal preferred against a decree passed by a first appellate court. While a first appeal is maintainable on questions of fact, questions of law, or mixed questions of fact and law, a second appeal is strictly restricted and can be entertained solely on a "substantial question of law".
Furthermore, while a first appeal can be filed in any designated superior court (such as a District Court or a High Court depending on the pecuniary valuation), a second appeal lies exclusively before the High Court. Where a first appeal is heard and disposed of by a Single Judge of the High Court, a further appeal within the same High Court does not lie as a second appeal under Section 100, but may be preferred before a Division Bench as a Letters Patent Appeal (LPA) or an Intra-Court Appeal, subject to the prevailing High Court Rules and Section 100A which bars further appeals in specific scenarios.
According to Section 100 of the CPC, the essential conditions governing a second appeal are as follows:
1. The High Court must be fully satisfied that the case involves a substantial question of law.
2. An appeal may lie from an appellate decree passed ex-parte by the lower appellate court.
3. The memorandum of appeal must precisely state and formulate the specific substantial question of law involved in the appeal.
4. The High Court shall hear the appeal only on the question of law so formulated. At the time of the hearing, the respondent must be allowed to argue that the case does not involve any such substantial question of law.The Apex Court in the landmark case of Chunilal V. Mehta & Sons Ltd. v. Century Spinning and Manufacturing Co. Ltd. [AIR 1962 SC 1314] settled the test for what constitutes a "substantial question of law", stating it must be debatable, not previously settled by the highest court, and must materially affect the rights of the parties. Hence, the right of a second appeal is highly circumscribed by the strict formulation and determination of such questions of law.
F. Bars on Second Appeals
The Code contains explicit provisions where a second appeal is barred and does not lie:
1. Section 101 explicitly mandates that no second appeal shall lie except on the strict grounds enumerated under Section 100.
2. Section 102 dictates that no second appeal shall be maintainable when the subject matter of the original suit is for the recovery of money and its value does not exceed twenty-five thousand rupees.
3. A second appeal fundamentally lies only against an appellate 'decree' and cannot be preferred against an 'order' unless such an order legally amounts to a decree.
G. Power of the High Court to Determine Issues of Fact (Section 103)
Notwithstanding the general rule that second appeals are confined to questions of law, Section 103 empowers the High Court to determine issues of fact. If the evidence on record is sufficient, the High Court may determine any issue of fact necessary for the disposal of the appeal which has either not been determined by the lower appellate court (or by both the court of first instance and the lower appellate court), or which has been wrongly determined by such courts by reason of an illegal or material irregularity as contemplated under Section 100.
H. Appeals from Orders (Section 104 and Order XLIII)
Section 104 provides the statutory list of specific orders from which an appeal shall lie. These include:
1. An order under Section 35A directing the payment of compensatory costs in respect of false or vexatious claims or defences.
2. An order under Section 91 or Section 92 concerning the refusal or grant of leave to institute a suit in cases of public nuisance or public charities.
3. An order under Section 95 directing compensation for obtaining arrest, attachment, or a temporary injunction on insufficient grounds.
4. An order made under any of the provisions of the Code imposing a fine or directing the arrest or detention of any person in a civil prison, except where such arrest or detention is carried out in the execution of a decree.
5. Any order made under the rules from which an appeal is expressly allowed by Order XLIII, Rule 1.
Crucially, Section 104(2) clarifies that no appeal shall lie against any order passed in an appeal under this section, thereby enforcing a strict rule against 'appeals from appeals'.
I. General Powers of an Appellate Court (Section 107)
Section 107 outlines the general powers conferred upon an appellate court. Subject to conditions and limitations prescribed under the rules, an appellate court has the power:
1. To determine a case finally.
2. To remand a case to the original court for fresh or further hearing.
3. To frame issues and refer them for trial to the lower court.
4. To take additional evidence or require such evidence to be taken by the lower court.
Furthermore, Section 107(2) explicitly provides that the appellate court shall possess the exact same powers and perform the same duties as are conferred and imposed on the court of original jurisdiction, making the appeal a continuation of the original suit.
J. Appeals to the Supreme Court (Section 109)
Section 109 regulates the circumstances under which an appeal from any judgment, decree, or final order passed in a civil proceeding of a High Court shall lie to the Supreme Court of India. An appeal shall lie to the Apex Court if the High Court certifies under Article 134A read with Article 133 of the Constitution of India:
1. That the case involves a substantial question of law of general importance.
2. That, in the opinion of the High Court, the said question needs to be decided by the Supreme Court.
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II. REVISION
A. Meaning and Statutory Scope
The literal meaning of the term 'revision' is the act of revising, implying a critical, careful examination or perusal of a matter with a view to correcting or improving it. Section 115 of the CPC invests the High Court with revisional jurisdiction over subordinate courts. Under this provision, the High Court may call for the record of any case which has been decided by any court subordinate to it, provided that no statutory appeal lies against such a decision. The High Court can exercise this power if the subordinate court appears:
1. To have exercised a jurisdiction not vested in it by law, or
2. To have failed to exercise a jurisdiction so vested, or
3. To have acted in the exercise of its jurisdiction illegally or with material irregularity.
Upon such examination, the High Court may make such order in the case as it thinks fit. However, the proviso to Section 115(1) severely restricts this power, stipulating that 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 other proceedings.
Additionally, following the crucial CPC Amendments, Section 115(2) clarifies that the High Court shall not vary or reverse any decree or order against which an appeal lies either to the High Court or to any subordinate court.
It is also well-settled law that the filing of a revision application does not ipso facto operate as a stay of the suit or other proceedings unless the High Court explicitly grants a stay order. The Supreme Court in Hindustan Petroleum Corporation Ltd. v. Dilbahar Singh (2014) re-emphasized that while exercising revisional jurisdiction, the High Court cannot routinely re-appreciate evidence or enter into the merits of the case like an appellate court, unless the findings are perverse.
B. Ingredients of Revision
To invoke the revisional jurisdiction under Section 115, the following baseline requirements must be fulfilled:
1. A case must have been decided by a court.
2. The court deciding the case must be subordinate to the High Court.
3. The decision must be of such a nature that no appeal lies against it to any court.
4. The subordinate court, in deciding the case, must appear to have committed a jurisdictional error.
C. Dimensions of Jurisdictional Error
The jurisdictional errors that trigger Section 115 are categorized into three distinct prongs:
First, where the subordinate court has exercised a jurisdiction not vested in it by law. A subordinate court is said to have exercised unauthorized jurisdiction if it assumes jurisdiction beyond its pecuniary or territorial limits, or by reason of the subject matter of the suit being outside its competence. It also applies if the court entertains an appeal from a non-appealable order, entertains a suit or appeal it has no competence to try, makes ultra vires orders, grants a temporary injunction without verifying if a prima facie case is made out, allows the withdrawal of a suit on grounds not contemplated under Order XXIII, Rule 1, or erroneously directs another subordinate court to try a suit not triable by it.
Second, where the subordinate court has failed to exercise a jurisdiction vested in it by law. Where a court possesses valid legal jurisdiction over a matter but erroneously concludes that it lacks jurisdiction, thereby declining to entertain or decide the matter, it commits a classic 'failure to exercise jurisdiction'.
Third, where the court has acted in the exercise of its jurisdiction illegally or with material irregularity. Exercising jurisdiction 'illegally' or 'with material irregularity' does not mean a mere error of fact or law. It relates to a breach of some vital provision of law, a material defect in applying procedural provisions, or a flagrant violation of the principles of natural justice that touches upon the core rendering of justice.
D. Discretionary Nature of Revisional Jurisdiction
The deliberate employment of the word 'may' in Section 115 unequivocally indicates that the exercise of revisional jurisdiction is purely discretionary. A party cannot claim a matter of right to have a case revised. Even if a jurisdictional error is pointed out, the High Court can refuse to interfere if it is satisfied that substantial justice has been done between the parties and no grave injustice or miscarriage of justice has occurred.
III. REVIEW
A. Meaning, Scope, and Grounds (Section 114 and Order XLVII)
The term 'review' literally translates to 'to look once again'. Professionally, it denotes the reconsideration of a judgment or order by the very same court that passed it, under specifically defined statutory conditions. The mechanism of review stands as a stark exception to the general common law principle that once a judgment is signed and pronounced, the judge becomes functus officio (having discharged their official duty) and cannot alter or change it.
Section 114 of the Code forms the substantive basis for review, while Order XLVII of the First Schedule provides the working procedure. Section 114 mandates that any person considering themselves aggrieved by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; 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 the judgment to the court which passed the decree or made the order. The court may subsequently pass such orders thereon as it deems fit.
According to Rule 1 of Order XLVII, an application for review can be maintained only on the following strictly defined grounds:
1. The discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge of the applicant or could not be produced by him at the time when the decree was passed or the order made.
2. Some mistake or error apparent on the face of the record.
3. Any other sufficient reason, which has been judicially interpreted to mean a reason analogous to the preceding two grounds.
The Supreme Court in Kamlesh Verma v. Mayawati [AIR 2013 SC 3301] laid down definitive guidelines on review, clarifying that a review application cannot be treated as an "appeal in disguise" and an error apparent on the face of the record must be a patent, self-evident error that does not require an elaborate process of reasoning or arguments to establish. Furthermore, before any review can be granted, notice must be mandatorily issued to the opposite party to appear and defend the order sought to be reviewed.
IV. COMPARATIVE ANALYSIS OF REMEDIES
A. Distinction Between Appeal and Revision
The legal remedies of appeal and revision differ fundamentally across several procedural and substantive parameters:
1. Where lies?
In terms of the forum, an appeal lies to any designated superior court from every original decree unless it is expressly barred by law. In sharp contrast, a revision lies exclusively to the High Court (except in certain states where local amendments empower District Courts) and is strictly confined to the narrow grounds of jurisdictional errors specified under Section 115.
2. Exerecise suo motu-
Regarding the initiation of the process, appellate jurisdiction can never be exercised suo motu by a court; it strictly requires an aggrieved party to prefer a memorandum of appeal. Revisional jurisdiction, on the other hand, can be exercised suo motu by the High Court if it calls for the records of a lower court on its own motion to satisfy itself as to the legality of the proceedings.
3. Nature of remedy-
When analyzing the nature of the right, an appeal is a substantive statutory right created by law, which an aggrieved party can demand as a matter of entitlement. Revisional jurisdiction is completely discretionary, and the High Court may decline to interfere even if a technical error is spotted.
4. Setting aside finding of facts-
Concerning the evaluation of facts, an appellate court, being a court of fact and law, possesses wide powers to re-appreciate evidence and set aside or modify the findings of fact recorded by a subordinate court. Conversely, a court exercising revisional jurisdiction cannot ordinarily interfere with or upset the findings of fact arrived at by a subordinate court, unless those findings are plagued by a jurisdictional error or absolute perversity.
5. Effect on proceeding if legal representatives are not brought on record.
On the issue of abatement, an appeal abates if the legal representatives of a deceased party are not brought on record within the strict period allowed by the Limitation Act. A revision application does not strictly abate in the same technical manner, and proper parties can be brought on record before the court at any time to serve the ends of justice.
B. Distinction Between Revision and Review
The operational boundaries of revision and review are clearly distinguished by the following structural variations:
1. The court exercising powers-
Regarding the court exercising the power, revisional power is exercised by a superior court, primarily the High Court, which examines the records of a court subordinate to it. Conversely, a review is conducted exclusively by the exact same court and the same judge who passed the original decree or order.
In terms of the statutory forum, the power of revision is exclusively conferred upon the High Court (subject to state-specific amendments for District Courts). A review, however, can be performed by any civil court—ranging from a Court of Small Causes to the Supreme Court—provided it passed the original judgment.
2. When power is to be exercised-
Looking at the availability of the remedy alongside appeals, the power of revision can be invoked only in cases where no appeal lies to the High Court or any subordinate court. A review can be sought even in cases where an appeal is broadly permitted by law, provided that no such appeal has actually been preferred by the party at the time of filing the review application.
3. Grounds-
Regarding the grounds for invocation, a revision lies solely on the grounds of jurisdictional error, encompassing the want of jurisdiction, failure to exercise jurisdiction, or illegal and irregular exercise of jurisdiction. In contrast, a review is triggered by the discovery of new and important evidence, a mistake or error apparent on the face of the record, or reasons analogous to them.
4. Applicability-
Finally, concerning appealability, the Code explicitly states that no appeal shall lie against an order passed by the High Court in the exercise of its revisional jurisdiction. On the other hand, while an order rejecting a review application is not appealable, an order granting a review application is explicitly appealable under the provisions of Order XLIII, Rule 1(w) of the Code.
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