Sections 113 and 114 CPC: Reference to High Court and Review
Sections 113 and 114 of the Code of Civil Procedure, 1908 form part of Part VIII dealing with reference, review and revision. Section 113 governs a reference by a court to the High Court, while Section 114 identifies the classes of decrees, orders and decisions in respect of which an aggrieved person may seek review.
Section 113 CPC - Reference to High Court
113. Reference to High Court.
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:
Provided that where the 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 contained in an Act, Ordinance or Regulation, the determination of which is necessary for the disposal of the case, and is of opinion that such Act, Ordinance, Regulation or provision is invalid or inoperative, but 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 therefor, and refer the same for the opinion of the High Court.
Explanation. In this section, "Regulation" means any Regulation of the Bengal, Bombay or Madras Code or Regulation as defined in the General Clauses Act, 1897 (10 of 1897), or in the General Clauses Act of a State.
Meaning and scope of Section 113
Section 113 does not create a general right in a litigant to demand a reference. It empowers the court, subject to the conditions and limitations prescribed in the Code, to state a case for the opinion of the High Court. The procedure is principally contained in Order XLVI of the First Schedule.
The proviso is important where validity of legislation is in issue. If the pending case requires determination of the validity of an Act, Ordinance, Regulation or a provision contained in one of them, and the subordinate court considers it invalid or inoperative although it has not already been so declared by the jurisdictional High Court or the Supreme Court, the court must state a case and make a reference.
State amendments to Section 113 CPC
Andhra Pradesh
In the Explanation to Section 113, after the words "any Regulation of the Bengal, Bombay or Madras Code", the Andhra Pradesh adaptation inserts a reference to any Regulation of the Madras Code in force in the State of Andhra as it existed immediately before 1 November 1956. The source page identifies the Andhra Adaptation of Laws (Amendment) Orders of 1954 and 1957.
Tamil Nadu
The Tamil Nadu adaptation adds, in the Explanation to Section 113, a reference to any Regulation of the Madras Code in force in the territories specified in the Second Schedule to the Andhra Pradesh and Madras (Alteration of Boundaries) Act, 1959. The source page identifies the Madras Added Territories Adaptation of Laws Order, 1961.
Puducherry
The source page records the Union Territory of Pondicherry amendment as corresponding to the Tamil Nadu adaptation and cites Act No. 49 of 1962. Current nomenclature uses "Puducherry"; the underlying historical statutory reference is retained.
Order XLVI CPC - Procedure governing references
Section 113 is read with Order XLVI of the First Schedule. Order XLVI contains the procedural framework for a reference, including reference of a question to the High Court, the power of the referring court to proceed subject to the High Court's decision, transmission of the High Court's judgment, costs, and related powers.
Key point: A Section 113 reference is a court-to-High Court procedure. Its maintainability and form depend on the statutory conditions and Order XLVI, rather than merely on a party disagreeing with an interlocutory or final decision.
Section 114 CPC - Review
114. Review.
Subject as aforesaid, any person considering himself aggrieved -
(a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed by this Code, 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.
Who may apply for review?
Section 114 identifies the categories in which a person considering himself or herself aggrieved may apply for review. The application is made to the court that passed the decree or made the order. The grounds on which review may actually be obtained are supplied by Order XLVII Rule 1 and must be read together with Section 114.
Order XLVII CPC - Grounds and procedure for review
Order XLVII Rule 1 provides the principal grounds for review. A review may be sought where the applicant relies on discovery of new and important matter or evidence which, despite due diligence, was not within the applicant's knowledge or could not be produced when the decree or order was made; on a mistake or error apparent on the face of the record; or on another sufficient reason.
Order XLVII also regulates matters such as the form of the application, rejection or grant of review, notice to the opposite party, rehearing after review is granted, and the bar against repeated review applications in the circumstances specified by the Order.
Review is narrower than appeal: Section 114 and Order XLVII do not provide a general opportunity to reargue the entire case merely because a party considers the judgment incorrect. The statutory grounds for review must be established.
Reference, review and appeal - basic distinction
A reference under Section 113 is made by a court to the High Court in the circumstances permitted by the Code. A review under Section 114 read with Order XLVII is sought before the court that passed the decree or made the order. An appeal, where provided by law, transfers the challenge to an appellate court and is governed by the relevant appellate provisions of the Code.
Official references
Frequently asked questions
What is a reference to the High Court under Section 113 CPC?
It is a statutory procedure under which a court may, subject to prescribed conditions and limitations, state a case and seek the opinion of the High Court. In the specific validity-of-legislation situation covered by the proviso, reference is mandatory when all statutory conditions are satisfied.
Who may seek review under Section 114 CPC?
A person considering himself or herself aggrieved may apply in the situations listed in clauses (a), (b) and (c) of Section 114, subject to the grounds and procedural requirements in Order XLVII.
Can review be sought when an appeal is available?
Section 114(a) covers a decree or order from which an appeal is allowed where no appeal has been preferred. Order XLVII contains further rules relevant to review, including circumstances involving an appeal by another party.
Is review the same as an appeal?
No. Review is a limited statutory remedy before the court that passed the decree or made the order. It is governed by the specific grounds in Order XLVII and is not a general rehearing equivalent to an appeal.