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The main aim of this project is to know about the power of revision by
the courts under civil procedure code.
HYPOTHESIS
RESEARCH METHODOLOGY
1. Introduction
2. Jurisdiction
3. Appeal
4. revision
5. Conclusion & Suggestion
6. Bibliography
1. INTRODUCTION1
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C.K Takwani
exercise any judicial power in relation to it. The limit of the authority is
imposed by the statute.
If the court has no jurisdiction, consent of parties cannot confer that
jurisdiction. But if two or more courts have jurisdiction to try the suit, it
is open to the parties to select a particular court and exclude other courts.
Kinds of Jurisdiction
A limitation on the jurisdiction of a civil court may be of four kinds.
These are as follows–
Appeal is provided under Section 96 of the CPC, which says that except
as provided in CPC or any other law for timbering in force, an appeal
shall lie from any decree passed by court exercising Original Jurisdiction
to appeal Court authorized to hear the appeal from the decision of the
Court i.e. Section 96 makes it clear that no appeal lies from appeal
decree passed by the Court with the consent of the parties. However, an
appeal may lie fro original decrees which is passed exparte i.e. without
hearing of the parties. No appeal lies against the decree passed by small
cause court, if the value of the subject-matter does not exceed Rs.
1,00,000 except on appeal question of law. Ordinarily, only appeal party
to the suit adversely affected by appeal decree or any of his
representatives in interest may file an appeal. However, appeal person
who is not appeal party to the decree or order may prefer an appeal with
leave of the court, if he is bound or otherwise prejudicially affected by
such decree or odder, as in such an eventuality he may be said to be an
“aggrieved person.
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Vol 2, Mulla, THE CODE OF CIVIL PROCEDURE, 17th edition, B.M. Prasad, Lexis Nexis, Butterworth
appeal has to be conferred by appeal statute. Where statute provides for
right to appeal, it may constitute appeal machinery where shall the
appeal lie. While the same isn’t true for right to sue. A civil suit has to
be filed subject to condition of jurisdiction. An appeal is appeal
substantive right. Right to appeal can’t be taken retros0pectively because
general rule of specific interpretation. Substantive law operates
prospectively unless an express statute provides so.
(2) An appeal lies only from the decrees and appealable order, but a
revision application lies from any decision of a court subordinate to the
High Court from which no appeal lies to the High Court or to any
subordinate court.
(5)The grounds for an appeal and revision application are also different.
An appeal lies on a question of fact or law or of fact and law, while a
revision application lies only on the ground of jurisdictional error.
(6) In case of appeal the memorandum of appeal must be filed before the
appellate court by the aggrieved party, but filing of an application is not
necessary in case of revision.
Scope:
In the exercise of revisional powers it is not the duty of the High Court
to enter into the merits of the evidence; it has only to see whether the
requirements of the law have been duly and properly obeyed by the
court whose order is the subject of the revision and whether the
irregularity as to failure or exercise of jurisdiction is such as to justify
interference with the order. The remedy by way of revision cannot be
denied in a case where the order is not appealable and in which one or
the other condition stated in S. 115 is satisfied.
Error of law:
The section is not directed against conclusion of law or fact in which the
question of jurisdiction is not involved. Error of law is by itself no
ground for revision unless it either results in a failure or wrong exercise
of jurisdiction or amounts to a material irregularity in the exercise of
jurisdiction.
Where a decree is erroneous in the sense that some technical rule of law
has been overlooked which could have been remedied, the High Court
does not ordinarily interfere in revision, but where there is a prohibition
in a statute and a claim could not have been decreed according to law,
the High Court would not be justified in importing any abstract
considerations of justice and overlooking the principle that justice
should be administered according to law.
The powers of the High Court in revision are not available for correction
of errors of law, however gross those errors may be, and whatever may
be the result of those errors on the merits of the case. Errors of
‘subordinate courts, however gross and palpable they may be, would
escape correction in the court of revision. The cause of justice has no
place in the framework of the revisional power and cannot prevail.
Section 115 empowers the High Court to satisfy itself on three matters :
(a) that the order of the subordinate court is within its jurisdiction 4;
(b) that the case is one in which the court ought to exercise jurisdiction;
(c) that in exercising jurisdiction the court has not acted illegally, that is,
in breach of some provision of law, or with material irregularity by
committing some error of procedure in the course of the trial which is
material in that it may have affected the ultimate decision.
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the revisional court to exercise the revisional jurisdiction under S. 115 of
the Code and the fourth condition is to be considered by the court while
making up its mind whether to interfere with the order under challenge
or not. These conditions are as under:
(c) That the order impugned suffers from jurisdictional error, i.e.,:
If these conditions are shown to exist even then the Court is not bound to
interfere with an order impugned under S. 115 of the Code,
5. CONCLUSION & SUGGESTION
Code of Civil Procedure, 1908 withstood the test of time, worked well,
did match the needs of the changing society, served the system
admirably, protected the interests of both the suitor and the sued and
remained as a truly admirable piece of legislation throughout the
century. Those who pleaded for radical reforms in procedural aspects
could suggest only peripheral changes. The ‘Code’ is considered to be
the ‘bible’ among the legal fraternity.
Though the ‘Code’ stood the test of time, several aspects need further
scrutiny and consideration. Various Amendments kept the ‘Code’ intact
with time and changing needs of the litigant polity. Amendments aimed
mainly at reduction of back logs, check on docket explosion and for
speedy disposal of cases. Several other aspects were lost sight of by the
legislators. They are, of course, simple in nature, but still keep the areas
grey and require chiseling with architectural symphony. Conflicting
judicial pronouncements by various High Courts made the situation
more complex. Law Commission of India in its 144th Report sought to
resolve the conflicts by various recommendations. It is sad to say that
many of the recommendations were unaccepted and not implemented.
Those recommendations were aiming at the removal of divergent
interpretations to the very same provisions and to give the Code a color
of uniformity.
In making of this project, I have taken help from various sites and books:-
www.indiankannon.org
www.sodhganga.com
www.educationalhub.com
Civil Procedure – C.K Takwani