“REVIEW IS AN EXCEPTION TO THE RULE THAT ONCE A

JUDGMENT IS PRONOUNCED AND SIGNED THE COURT

PRONOUNCING IT BECOMES FUNCTUS OFFICIO”
LILY THOMAS V. U.O.I., 2000 (6) SCC 224
RESEARCH PROJECT SUBMITTED IN PARTIAL FULFILLMENT OF THE
COURSE CIVIL PROCEDURE CODE FOR THE DEGREE B.B.A LL.B (Hons.)

SUBMITTED TO SUBMITTED BY

DR. MEETA MOHINI NIHARIKA BHATI

(VISITING FACULTY FOR CODE ROLL NO.- 1839

OF CIVIL PROCEDURE) 5th SEMESTER

CHANAKYA NATIONAL LAW UNIVERSITY

NYAYANAGAR, MITHAPUR, PATNA
800001
SEPTEMBER, 2019

1
 DECLARATION BY THE CANDIDATE

I hereby declare that the work reported in the B.B.A. LL.B (Hons.) Project Report entitled
“REVIEW IS AN EXCEPTION TO THE RULE THAT ONCE A JUDGMENT IS
PRONOUNCED AND SIGNED THE COURT PRONOUNCING IT BECOMES FUNCTUS
OFFICIO” LILY THOMAS V. U.O.I., 2000 (6) SCC 224 submitted at Chanakya National Law
University, Patna is an authentic record of my work carried out under the supervision of DR.
MEETA MOHINI. I have not submitted this work elsewhere for any other degree or diploma. I
am fully responsible for the contents of my Project Report.

(Signature of the Candidate)

Niharika Bhati

Chanakya National Law University, Patna

August, 2019

2
 ACKNOWLEDGEMENT

I take this opportunity to express my profound gratitude and deep regards to my guide Dr. Meeta
Mohini for her exemplary guidance, monitoring and constant encouragement throughout the
course of this thesis. The blessing, help and guidance given by her time to time shall carry me a
long way in the journey of life on which I am about to embark.

I am obliged to staff members of Chanakya National Law University, for the valuable
information provided by them in their respective fields. I am grateful for their cooperation
during the period of my assignment.

Lastly, I thank almighty, my parents, brother, sisters and friends for their constant
encouragement without which this assignment would not be possible.

Thank you!

3
 OBJECTIVE OF THE STUDY

The research will facilitate better understanding of the following:-

 Order 47 Rule 1 C.P.C.

 What is Functus Officio in relation to court?

 The decision of the Hon’ble Supreme Court in the given case.

HYPOTHESIS
Section 114 of C.P.C. is an exception to the rule that once a judgement is pronounced and signed
the court becomes functus officio.

RESEARCH METHODOLOGY
The method of writing followed in the course of the research project is primarily analytical.
Doctrinal method of research has been used to complete this project. The researcher has followed
a uniform mode of citation.

SOURCES OF DATA

PRIMARY- The Code of Civil Procedure.

SECONDARY- Books, journals and internet.

REVIEW OF LITERATURE

A comprehensive review of literature is an essential part of any scientific investigation. It is

necessary for the researcher to acquaint herself with the work done in the past which induces
insight into the problem for further work.

4
 STYLE OF WRITING

The researcher will be using both descriptive and analytical styles of writing.

MODE OF CITATION

The researcher will be using a uniform mode of citation throughout this paper.

SCOPE AND LIMITATIONS OF THE STUDY

Though the researcher will try her level best not to leave any stone unturned in doing this project
work to highlight various aspects relating to the topic, but the topic is so dynamic field of law,
the researcher will sight with some of unavoidable limitations. The limitations encountered by
the researcher were the paucity of time.

5
 CHAPTERIZATION

CHAPTER 1. Comprehensive Study Of The Case.

CHAPTER 2. Judgement.

CHAPTER 3. Difference between Review, Appeal and Revision.

CHAPTER 4. Review of the Jugement Under Order 47 Rule 1 of C.P.C.

CHAPTER 5. Related Case Laws.

CHAPTER 6. Conclusion.

Bibliography

6
 1. COMPREHENSIVE STUDY OF THE CASE
A. FACTS:

Mrs. Sushmita Ghosh was married to Mr. Gyan Chand Ghosh, who to reap benefit of a second
marriage with one Ms. Vinita Gupta (divorcee with 2 children) had converted to Islam as the
Hindu Marriage Act prohibited bigamy under s.5 read with s.11 of the Hindu Marriage Act and
further substantiated under s.17 of the Hindu Marriage Act which provides the Punishment for
Bigamy to be the same as under s.474 and 475, IPC.

The three petitions viz., 1) Mrs. Sushmita Ghosh v. Union of India and Ors.1 ; 2) Smt.Sarla
Mudgal, President, Kalyani and others v. Union of India and Ors.2 ; 3) Sunita @ Fatima v.
Union of India and Ors.3 , here they had been tagged together and the Supreme Court made the
law that “marriage resulting from religious conversion to Islam for taking a second wife is void
when during the existence of first marriage under The Hindu Marriage Act because such
conversion of faith is feigned rather than exercise of freedom of conscience.4

The case Lily Thomas v. Union of India is where various persons and Jamiat Ulema Hind & Anr.
, have filed review petition under Art.136 of the Constitution of India to review law laid down by
Sarla Mudgal Case in 1995 and which was upheld through the Lily Thomas case before in the
criminal proceedings5 . Other writ petitions for breach of fundamental rights (Art. 20, 21, 25, 26)
due to the law set by Sarla Mudgal case was also filed. Lily Thomas is the lawyer of the
distressed wife, Mrs. Sushmita Ghosh and other such women who have been a victim to
bigamous marriage through religious conversion.6 This case is resided by the two Judges bench
of S. Saghir Ahmed, J. and R.P. Sethi, J. From this case the vital issue that arises on Art.21:
Whether religious conversion for the purpose of committing bigamy and polygamy is violation
of Art.21 as long as Muslim Personal laws or any other marriage law allows polygamy?

1
2001(2) ACR 1809(SC)
2
AIR 1995 SC 1531
3
W.P. (Civil) No. 347/90 (SC)
4
2000 (2) ALD Cri 686, 2000 (1) ALT Cri 363 and also was the principle in Sarla Mudgal v. Union of India, AIR
1995 SC 1531
5
2000 (2) ALD Cri 686, 2000 (1) ALT Cri 363
6
http://timesofindia.indiatimes.com/india/End-polygamy-Muslim-woman-pleads
withSC/articleshow/41545339.cms

7
B. CONTENTION OF THE PARTIES:

The first issue has been raised by Lily Thomas on behalf of the women wronged, the argument
was that marriage is a sacred institutions and resorting to the act of religious conversion to
Muslim so as to commit the act of bigamy as Muslim Personal Law allows it, is a feigned
attempt where freedom of conscience is not at stake but the women’s freedom of facing such
conditions of bigamous marriage and this betrayal is violative of Art.21 right to life and liberty.
Further, Lily Thomas urged the court to declare polygamy in the Muslim law to be
unconstitutional.

This was one of the most profound arguments placed before the Supreme Court for adopting a
Uniform Civil Code so as to absolve vast majority of socio-legal issues that were being
uncovered due to Religious Personal Laws. The few were 1) Many Muslim women had filed writ
petition before the Supreme Court and other high courts to declare polygamy in Muslim law to
be unconstitutional. 2) To reframe Muslim personal law in the likes as present in Tunisia where
polygamy is disallowed as the custom and usage of polygamy is disrespectful to the liberty and
integrity of women who have to face and live within bigamous and polygamous marriages. 3) To
have a Uniform Civil Code so that no Personal Religious laws makes fundamental rights
violation.7

The latter issue has been raised from the petitioners’ side as some of them have been
apprehended under s.475, IPC due to the law made by the Supreme Court in the Sarla Mudgal’s
Case; hence review of the same has been raised against the Court’s previous judgment. The
counsel for the petitioners have argued that the aggrieved parties while exercising their freedom
of conscience and to profess any religion have sought conversion to Islam and due to such
reasons they are allowed to commit Bigamy. The judgment in Sarla Mudgal Case have laid down
the law that such marriage done after conversion to Islam is void as under the Hindu law before
conversion their exists the previous marriage and hence, due to such voidness of marriage, some
have been apprehended under s.475, IPC. This is a violation of right to life and liberty due to the
contention that the Muslim Personal Law (Shariat) Act allows bigamy and hence, the
apprehended have not committed any offence of IPC.

7
http://en.wikipedia.org/wiki/Uniform_Civil_Code

8
 2. JUDGEMENT
The Supreme Court bench of Sagir Ahmed, J. and Sethi, J. has upheld the decision of the Sarla
Mudgal case and further has enforced the same. Marriage resulting from conversion to Muslim
from any other faith during the existence of previous marriage before conversion is deemed
voideven when Muslim Personal Law (Shariat) Act allows polygamy because such conversion is
not exercise of freedom of conscience but rather feigned and fraudulent without the change of
faith. The reason derived from the facts that lead to this judgment was due to the practice of the
husband who had converted to Islam but had not registered his new name or faith as recognition
for the child born out of the second wedlock. Even bank accounts hold identification of the
husband to have been Hindu. All these were seen as evidence to justify that the conversion was
feigned and solely for bigamous marriage rather than any changes in neither faith nor practice of
faith. Hence, marriage resulting from such conversion is void also due to violation of Art.21.

The violation of Article 21 on behalf of those apprehended under the law laid down in Sarla
Mudgal is being seen as no violation at all but the Court speaking from Sethi J. have contended
that Article 21 states no person shall be derived of his right of life and personal liberty except as
per procedure establish by law. Here the persons are apprehended for offences under s.474 and
475, IPC therefore no right has been violated because such apprehension has been laid down by
law. The Court has said that alleged violation of Article 21 is misconceived.

ANALYSIS:

This law as laid down in Sarla Mudgal v. Union of India and upheld in Lily Thomas v. Union
of India has raised issues for having a Uniform Civil Code for India (such though has been laid
down in Lily Thomas case) and also the 227th Report of The 18th Law Commission of India in
August 2009 have made this issue of preventing Bigamous marriage though Conversion to Islam
it’s subject and the commission headed by Dr. Justice A.R. Lakshmanan have provided sound
measures to keep this rampant practice of fraudulent conversion for benefits of
bigamy/polygamy under strict constrains so as to prevent such atrocities from ever occurring.
Though such implementation of the report in Indian Statutory law is yet to be seen. The law

9
exists in judicial precedent and the ratio decidendi is applicable to all religious laws and not
confined to prevention under Hindu Marriage law.8

The order dismissed the review petition and other petition due to no substance but also assured
the Jamiat Ulema Hind and the Muslim Personal Law Board that the Judiciary or the Union have
not thought of making a Uniform Civil code. All interim orders passed including stay of the
Criminal Case in subordinate Courts shall stand vacated. Both judges have given a concurring
opinion. Henceforth, the law on this issue reads: Any Marriage instituted after conversion to
Muslim while a marriage already remains from before conversion, will be void.

8
18th Law Commission of India, 227th Report: Preventing Bigamy via Conversion to Islam – A Proposal for giving
Statutory Effect to Supreme Court Rulings; August, 2009.

10
3. DIFFERENCE BETWEEN REVIEW, APPEAL AND REVISON.
A. APPEAL:

According to C.K. Takwani, “appeal is a proceeding by which the defeated party approaches a
higher authority or court to have the decision of a lower authority or court reversed.” 9

An appeal is a continuation of a suit. 10 A decree passed by an Appellate Court would be

construed to be a decree passed by the Court of the first instance. An appeal is virtually a
rehearing of the matter. The appellate court possesses the same powers and duties as the original
court.

Elements of Appeal:

To constitute an appeal there are certain ingredients or elements. The following three are the
basic elements to constitute an appeal:

1. a decision (usually a judgment of a court or the ruling of an administrative authority);

2. a person aggrieved (who is often, though not necessarily, a party to the original proceeding);
and

3. a reviewing body ready and willing to entertain an appeal.

Civil Appeal:

When in a suits which is of civil nature, any material error has occurred as regard to any matter
of law or matter of fact, the aggrieved party can filled an appeal to the appellate court if right of
appeal is granted by the Code. And such appeal is called a civil appeal. As it is stated before that
appeal as a creature of law, the right of appeal must be given by the statute.

So, the right of civil appeal is also granted by our statute. The procedure as regard to civil appeal
is governed by the Code of Civil Procedure, 1908 and the Civil Courts Act, 1887. The main
provisions as to civil appeal is governed by the CPC, 1908. The general provisions as to civil
appeal is propounded in,

9
Civil Procedure, 7th Ed., p. 475
10
Garikapati Veeraya vs. N. Subbiah Chaudhry, AIR 1957 SC 540

11
a) sections 96 to 112 of the CPC, 1908;

b) orders 41, 43, 44 and 45 of the CPC, 1908

and which appeal lies to which court is specifically mentioned in sections 20 and 21 of the Civil
Courts Act, 1887. The right to file an appeal in case of any civil suit has been conferred by
section 96 of the Code of Civil Procedure, 1908.

Conditions as to Civil Appeal:

There are certain conditions to file a civil appeal. To file a civil appeal under section 96 of the
Code of Civil Procedure, 1908, the following conditions must be fulfilled:

a) the suit must be a suit of civil nature under section 9 of the CPC, 1908;

b) the appeal must be made against a “decree”, that is, a conclusive determination of “the rights
of the parties with regard to all or any of the matters in controversy in the suit”; or

c) the appeal must be made against an order made appeallable by the CPC, 1908;

d) the party appealing must have been adversely affected by such determination.11

Right to Civil Appeal under the CPC, 1908:

The Code of Civil Procedure, 1908, majorly recognizes two types of rights to appeal. And under
the two forms of appeal there are various form of appeal. Under the Code, there is two grounds
where the court recognizes appeal,

a) appeal from decree passed by the Court (S. 96-99 of CPC, 1908); and

b) appeal from order passed by the Court (S. 104-106).

These two rights of civil appeal is given under two different sections of the Code. Appeal from
decree is given by section 96 of the Code, whereas the former, which is right to appeal from
order passed by the court is given by section 104 of the Code. There are various other appeal
recognized by the Code under these two types of appeal. A diagram is given below, showing
various types of civil appeal recognized by the Code.

11
State of Punjab vs. Amar Singh, (1974) 2 SCC 70

12
B. REVIEW:

Review means to reconsider, to look again or to re examine. In legal sense, it is a judicial re-
examination of the case by the same court and by the same Judge12.

A general rule of law is that, once a judgment is signed and pronounced by the court it becomes
functus officio, which means that, once a judgment is signed and pronounced by the court it
ceases to have control over the matter and the court has no jurisdiction to alter the judgment. But
an exception to this rule is the system of review in law. This exception has taken its place in law
because of the common nature of human being to make mistake.

A right of review is both substantive as well as procedural. As a substantive right, it has to be

conferred by law, either expressly or by necessary implications. There can be no inherent right of
review. As a procedural provision, every Court or tribunal can correct an inadvertent error which
has crept in the order due to procedural defect or mathematical or clerical error or by
misrepresentation or fraud of a party to the proceeding, which can be corrected asex debito
justitae. If a review is not maintainable, it cannot be allowed by describing such application as an
‘’clarification’’ or ‘’modification’’13

According to section (114) of CPC, any person aggrieved by a decree or order from which an
appeal is allowed but not filed, or a decree or order from which no appeal is allowed, can file a
review petition in the same court which passed such decree or order on the following grounds:

1. When new and important matter or evidence is discovered 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 or order was passed;
2. When there is any mistake or error apparent on the face of the record;
3. When there is any other sufficient reason.

12
http://www.legalservicesindia.com/article/2580/Reference,-Revision-And-Review.html
13
http://www.legalservicesindia.com/article/2580/Reference,-Revision-And-Review.html

13
 Appeal vs. Review:

Both appeal and review are remedy made by the statute for the fallibility nature of human being.
Both the procedure are procedure of removing error or mistake. Thus, in this sense appeal and
review has similarity. But the two remedy has certain dissimilarity too. The distinctions as regard
to appeal and review are as following:

SUBJECT MATTER APPEAL REVIEW

As to definition Appeal means the right of carrying a Review means a judicial reexamination
particular case from an inferior to a of a case in certain specified and
superior court with a view to prescribed circumstances.
ascertaining whether the judgment is
sustainable.

As to the section under Sections 96 to 112 of CPC, 1908, has Section 114 of CPC, 1908, has
CPC,1908 enunciated about appeal. enunciated about review.

As to classification Under the CPC, 1908, there can be There is no such classification in case
appeal from order, decree or there of review.
can be pauper appeal etc.

As to the Court Appeal lies to the superior court Review lies to the same court.

As to the judge hearing Appeal heard by the different judge. Review as the matter of
reconsideration of same subject matter
heard by the same judge.

As to ground The grounds for appeal are wider The grounds for review are not as wide
than review. as appeal.

As to Limitation Under the Limitation Act, 1963, time Under the Limitation Act, 1963, time
limitation for appeal is 90 days to limitation for review is 30 days.
HCD & 30 days in other courts.

As to Article enunciating Article 116 of the Limitation Act, Article 124 of the Limitation Act,

14
the time limitation 1963, has enunciated the time 1963, has enunciated the time
limitation for appeal. limitation for appeal.

C. REVISION:

Just like appeal and review, revision has come to law for the same purpose, which is to correct
any error or mistake. Revisional power of the High Court is a power to rectify any mistake or
error of law of the judgment given by the lower court.

According to the Oxford English Dictionary, the term “revision” means, “the action of revising,
especially critical or careful examination or perusal with a view to correcting or improving”.

Revision under the Code of Civil Procedure, 1908:

Under the Revisional power granted by section 115, CPC, 1908, may exercise its Revisional
jurisdiction. Section 115(1), conferred Revisional jurisdiction to the HCD. Under the section the
HCD may grant an application for revision made by any aggrieved party to a suit, if such party is
aggrieved by,

a) any decree or order passed by a Court of District Judge or Additional District Judge (in such
case the condition of being appealable order or decree is not imposed); or

b) any decree passed by a Court Joint District Judge, Senior Assistant Judge or Assistant Judge,
not being appealable;

and can call for record of the suit or proceeding. But to do such it must be satisfied that such
subordinate court has committed, any error of law resulting in an error in such decree or order
occasioning failure of justice.

If the above mentioned conditions are fulfilled the HCD may revise such decree or order and
make such order as it thinks fit.

Section 115(2), CPC, 1908, has conferred Revisional power to the District Judge. Under the
section, the District Judge, if an aggrieved party to a suit make an application for revision against
any order which are not appealable passed by any,

15
a) Joint District Judge; or

b) Senior Assistant Judge; or

c) Assistant Judge;

may call for the record of the suit or proceeding. But in such case the court has to be satisfied
that, such subordinate court has committed any, error of law resulting in an error in such order.

And if the above mentioned conditions are fulfilled the District Judge may revise such order and
make such order as it thinks fit.

Object:

The underlying object of sec. 115, CPC, 1908, is to prevent subordinate courts from acting
arbitrarily, capriciously and illegally or irregularly in the exercise of their jurisdiction. It cloths
the High Court with the powers to see that the proceedings of the subordinate courts are
conducted in accordance with law within the bounds of their jurisdiction and in furtherance of
justice.158

It enable the High Court to correct, when necessary, errors of jurisdiction committed by
subordinate courts and provides the means to an aggrieved party to obtain rectification of a non-
appealable order. In other words, for the effective exercise of its superintending and visitorial
jurisdiction is conferred upon the High Court14.

Who may Exercise the Power?

The Revisional power under the CPC, 1908, has been conferred by section 115 of CPC, 1908.
The same section has enunciated who may exercise the power conferred under this section. The
Revisional power under the CPC, 1908, can be exercised by,

a) the High Court Division;15 and

b) the District Judge.16

14
Major S. S. Khanna vs. Brig. F. J. Dillon, AIR 1964 SC 497
15
Sec. 115(1), CPC, 1908
16
Sec. 115(2), CPC, 1908

16
 Appeal vs. Revision:

Though appeal and revision both are for the correction of mistake or error of law made by any
court in any judgment, both has certain distinctions. Distinctions between the two is as
following:

SUBJECT MATTER APPEAL REVISION

As to definition Appeal means the right of carrying a Revision is a purely discretionary

particular case from an inferior to a remedy granted by a higher court
superior court with a view to with a view to correcting miscarriage
ascertaining whether the judgment is of justice.
sustainable.

As to the Court Exercising Appeal lies to a superior court, which Only the HCD & the District Judge
the power may not necessarily the HCD can exercise the Revisional power

As to matter to consider In appeal both matter of law and matter In case of revision only matter of law
of fact are to be considered is to be considered.

As to section under CPC, Sections 96 to 113 of CPC, 1908, deal Section 115 of CPC, 1908, deal with
1908 with appeal. revision.

As to Order under CPC, Orders 41 to 45 deal with appeal. No such order deal with revision.
1908

2nd appeal and 2nd revision There is not provision as to 2nd appeal Under sec. 115(3), CPC, 1908, there
in CPC, 1908. is provision as to 2nd revision.

Review vs. Revision:

17
 Both review and revision are remedy for the correction of mistake or error of law. But though the
birth of the both was for somehow same types of reason, both has certain distinctions. The
distinction between the two is as following:

SUBJECT MATTER REVIEW REVISION

As to definition Review means a judicial re- Revision is a purely discretionary

examination of a case in certain remedy granted by a higher court with
specified and prescribed a view to correcting miscarriage of
circumstances. justice.

As to section under CPC, Section 114 of CPC, 1908, deal with Section 115 of CPC, 1908, deal with
1908 review. revision.

As to Order Order 47 of CPC, 1908 deal with No such order deal with revision.
the procedure of review.

As to court The same court passing the decree Only the HCD and the District Judge
or order dispose of review. can exercise the power of revision.

As to appeal Order granting review is appealable. Order granting review is not

appealable.

18
 4. REVIEW OF JUDGMENT UNDER ORDER 47 OF C.P.C.
A. MEANING

Review means to reconsider, to look again or to re examine. In legal sense, it is a judicial re-
examination of the case by the same court and by the same Judge.

B. NATURE AND SCOPE

According to the general principle of law, once the judgment is passed the court becomes
functus officio. A power of review should not be confused with the appellate powers which
enables an appellate court to enable all errors committed by the subordinate Court. Greater care,
seriousness and restrain should be given in review application as would not be fair to court to
deal with the same case with the same party over again and again and it would increase the
backlog of the case over the court. A right of review is both substantive as well as procedural. As
a substantive right, it has to be conferred by law, either expressly or by necessary implications.
There can be no inherent right of review. As a procedural provision, every Court or tribunal can
correct an inadvertent error which has crept in the order due to procedural defect or mathematical
or clerical error or by misrepresentation or fraud of a party to the proceeding, which can be
corrected asex debito justitae. If a review is not maintainable, it cannot be allowed by describing
such application as an ‘’clarification’’ or ‘’modification’’17

C. OBJECT AND APPLICATION

A person aggrieved by a decree or order may apply for review of a Judgment. A person
aggrieved has been understood to mean who has a genuine grievance because an order has been
made which prejudicially affects his interests.But the concept, purpose and provisions ‘’person
aggrieved’’ varies according to the context, purpose and provisions of the statue. A person who
is neither a party to the proceedings nor a decree or order binds him, cannot apply for review as

17
http://www.legalservicesindia.com

19
the decree or order does not adversely or prejudicially affect him18. The remedy of review, which
is a reconsideration of the Judgment by the same Court and by the same Judge, has been
borrowed from the Court of equity. This remedy has a remarkable resemblance to the writ of
error. Rectification of an order stems from the fundamental principle that justice is above all. It is
exercised to remove error and not to disturb finality.

D. CIRCUMSTANCES FOR REVIEW

(i) No Right of appeal is allowed

Where no right of appeal is allowed to an aggrieved party, he can file a review application. When
an appeal is dismissed on the ground that it was incompetent or was time –barred, the provisions
of review would get attracted.

(ii) Right of appeal lies but not availed.

A review petition is also maintainable in cases where appeal is provided but no such appeal is
preferred by the aggrieved party. An application for review can be presented so long as no appeal
is preferred against the order. However when appeal is already pending in the Court, no review
petition can be entertained. But if the review petition is filed first and subsequently appeal is
filed, the jurisdiction of the court to deal with the review application is not affected. If review is
granted before the disposal of the appeal, the decree or order ceases to exist and the appeal will
not remain. If appeal is decided on the merits before an application of review is heard, such
petition becomes infructuous and is liable to be dismissed19.

E. GROUNDS FOR REVIEW

(i) Discovery of new and important matter or evidence.

A review is permissible on the grounds of discovery by the applicant of some new and important
matter or evidence which, after exercise of due diligence, was not within his knowledge or could
not be produced by him at the time when the decree is passed. The underlying object of this
provision is neither to enable the Court to write a second Judgment nor to give a second innings

18
http://lawfultalks.com
19
https://www.lawnn.com

20
to the party who has lost the case because of his negligence or indifference20. Therefore, a party
seeking a review must show that there was no remiss on his part in adducing all possible
evidence at the trial.

The new evidence must be such as presumably to be believed, and if believed to be conclusive.
In other words, such evidence must be:-

(a) Relevant

(b) Or of such character that if it had been given it might possibly have altered the judgment.

(ii) Mistake or error

What is an error apparent on the face of the record cannot be defined precisely or exhaustively,
and it should be determined on the facts of the each case. Such error may be one of fact or of the
law.No error can be said to be apparent on the face of the record if it is not self-evident and
requires an examination or argument to establish it.

In the case of Thungabhandra Industries ltd v. Govt of A.P 21 , the Supreme Court rightly
observed:

“…….where without any elaborate argument one could point to the error and say here is a
substantial point of law which stares one in the face, and there could reasonably be no two
opinions entertained about it, a clear case of apparent on the face of the record would be made
out.

F. WHAT IS “FUNCTUS OFFICIO” IN RELATION TO COURT?

When the term “Functus Officio” is used in relation to the court, it means that ‘once the court
passed any judgment after the lawful hearing, then the case cannot reopen and the judgment is
binding on the parties’. A lawful hearing and trial are the essential conditions for the “Functus
Officio”.

20
https://www.manupatrafast.in
21
AIR 1964 SC 1372

21
Right to review judgment is the exception to this Latin term “Functus Officio”. On the
application of an aggrieved party or person, the proceeding for review of Judgment will be
initiated.

G. INTERPRETATION OF REVIEW AS ADOPTED BY THE SUPREME COURT IN

LILY THOMAS V. U.O.I.

The power of review can be exercised for correction of a mistake and not to substitute a view.
Such powers can be exercised within the limits of the statute dealing with the exercise of power.
The review cannot be treated an appeal in disguise. The mere possibility of two views on the
subject is not a ground for review. Once a review petition is dismissed no further petition of
review can be entertained22.

In the Review Petition the Court issued notice limited to the question of Article 20(1) of the
Constitution of India and in the writ petitions directions were issued for their listing after the
disposal of the Review Petition. However, at the request of the learned Counsel for the parties
the Court directed the hearing of all the writ petitions along with the review petition.

It was contended that review being the creation of statute, the powers have to be exercised only
within the limits prescribed by law. It was further contended that notice in review being limited
to Article 20(1) of the Constitution would not warrant the consideration of the other pleas raised.
Learned Counsel appearing for the petitioners have, however, submitted that in view of the
judgment in A.R. Antulay v. R.S. Nayak and Ors.23 this Court has the power to review. The
Court can exercise the power of review in a petition under Article 136 or Article 32 or under any
other provision of the Constitution of India if the Court is satisfied that its directions have
resulted in the deprivation of fundamental rights of a citizen or any legal right of the petitioner
because no-one can be forced to suffer because of the mistake of the Court. Rules of procedures
are the hand-maids of justica and not mistress of justice.

22
Lily Thomas and Ors. vs. Union of India (UOI) and Ors. (05.04.2000 - SC) : MANU/SC/0327/2000
23
MANU/SC/0002/1988 : 1988CriLJ1661

22
In this case the court observed that the dictionary meaning of the word "review" is "the act of
looking; offer something again with a view to correction or improvement. It cannot be denied
that the review is the creation of a statute. In Patel Narshi Thakersh and Ors. v. Pradyunman
singh ji Arjun singh ji24 held that the power of review is not an inherent power. It must be
conferred by law either specifically or by necessary implication. The review is also not an appeal
in disguise. If cannot be denied that justice is a virtue which transcends all barriers and the rules
or procedures or technicalities of law cannot stand in the way of administration of Justice. Law
has to bend before Justice. If the Court finds that the error pointed out in the review petition was
under a mistake and the earlier judgment would not have been passed but for erroneous
assumption which in fact did not exist and its perpetration shall result in miscarriage of justice
nothing would preclude the Court from rectifying the error.

The court also held that rectification of an order thus stems from the fundamental principle that
justice is above all. It is exercised to remove the error and not for disturbing finality. When the
Constitution was framed the substantive power to rectify or recall the order passed by the
Supreme Court was specifically provided by Article 137 of the Constitution. In exercise of this
power Order 40 had been framed empowering the Supreme Court to review an order in civil
proceedings on grounds analogous to Order 47 Rule 1 of the Civil Procedure Code. The
expression, 'for any other sufficient reason' in the clause has been given an expanded meaning
and a decree or order passed under misapprehension of true state of circumstances has been held
to be sufficient ground to exercise the power. Apart from Order 40 Rule 1 of the Supreme Court
Rules this Court has the inherent power to make such orders as may be necessary in the interest
of justice or to prevent the abuse of process of Court. The Court is thus not precluded from
recalling or reviewing its own order if it is satisfied that it is necessary to do so for sake of
justice.

The mere fact that two views on the same subject are possible is no ground to review the earlier
judgment passed by a Bench of the same strength.

It follows, therefore, that the power of review can be exercised for correction of a mistake and
not to substitute a view.

24
MANU/SC/0433/1970 : AIR1970SC1273

23
In the light of the legal position as enumerated hereinabove, the grievances of the
petitioners in the instant case can be examined as-

In review petition the notice issued was limited to the question of Article 20(1) of the
Constitution. It was contended that the judgment of the Court entailed a convert to Islam the
liability of prosecution for the offence of bigamy under Section 494 of the Indian Penal Code
which would, otherwise not be an offence under the law applicable to him. Section 494 forms
part of a substantive law and is applicable to all unless specifically excluded. As no notice has
been issued for review of the main judgment which interpreted Section 494 IPC, it cannot be said
that any person was likely to be convicted for an offence except for violation of law in force at
the time of commission of the act charged as offence. The court finally held that-

“Otherwise also no ground as envisaged under Order XL of the Supreme Court Rules read with
Order XLVII of the CPC has been pleaded in the review petition or canvassed before the court
during the arguments for the purposes of reviewing the judgment in Sarla Mudgal 's case. It is
not the case of the petitioners that they have discovered any new and important matter which
after the exercise of due diligence was not within their knowledge or could not be brought to the
notice of the court at the time of passing of the judgment. All pleas raised before the court were
in fact addressed for and on behalf of the petitioners before the Bench which, after considering
those pleas, passed the judgment in Sarla Mudgal's case. The court have also not found any
mistake or error apparent on the face of the record requiring a review. Error contemplated under
the rule must be such which is apparent on the face of the record and not an error which has to be
fished out and searched. It must be an error of inadvertence. No such error has been pointed out
by the learned Counsel appearing for the parties seeking review of the judgment. The only
arguments advanced were that the judgment interpreting Section 494 amounted violation of some
of the fundamental rights. No other sufficient cause has been shown for reviewing the judgment.
The words "any-other sufficient reason appearing in Order XLVII Rule 1 CPC" must mean "a
reason sufficient on grounds at least analogous to those specified in the rule" as was held in
Chajju Ram v. Neki Ram.25 Therefore, it can safely be held that the petitioners have hot made
out any case within the meaning of Article 137 read with Order XL of the Supreme Court Rules
and Order XLVII Rule 1 of the CPC for reviewing the judgment in Sarla Mudgal 's case. The

25
MANU/PR/0006/1922 : AIR 1922 PC 112

24
review petition is misconceived and bereft of any substance and therefore is liable to be
dismissed on this ground alone.”26

Therefore the review petition was dismissed by the court.

5. RELATED CASE LAWS

The Supreme Court in S. Nagaraj and Ors etc. v. State of Karnataka and Anr. etc27. held that -

Review literally and even judicially means re-examination or reconsideration. Basic philosophy
inherent in it is the universal acceptance of human fallibility. Yet in the realm of law the courts
and even the statutes lean strongly in favour of finality of decision legally and properly made.
Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or
miscarriage of justice. Even when there was no statutory provision and no rules were framed by
the highest court indicating the circumstances in which it could rectify its order the courts culled
out such power to avoid abuse of process or miscarriage of justice.

In Parison Devi and others v. Sumitra Devi and others28 the court held that-

It is now well settled that review Proceedings have to be strictly confined to the ambit and
scope of order 47, rule 1 of c.p.c.,. Under Order 47, Rule 1 of C.P.C., a judgment may be open to
review, inter alia, if there is a mistake or an error apparent on the face of the record. An error
which is not self evident and has to be detected by process of reasoning can hardly be said to be
an error apparent on the face of the record justifying the Court to exercise the power of review
under order 47, rule 1 of c.p.c.,. In exercise of jurisdiction under order 47, rule 1 of c.p.c., it is
not permissible for an erroneous decision to be re-heard and corrected. A review petition has a

26
Lily Thomas and Ors. vs. Union of India (UOI) and Ors. (05.04.2000 - SC) : MANU/SC/0327/2000

27
MANU/SC/0797/1993 : (1994)ILLJ851
28
[1998 (1) CTC 25].

25
limited purpose and cannot be allowed to be an appeal in guise. A useful reference can be made
to the Judgment.

As held by the Apex Court in the case of Haridas Das v. Smt. Usha Rani Banik and Ors.29,
neither section 114 nor order 47 rule 1 of c.p.c. postulate a re-hearing of the dispute, because a
party had not highlighted all the aspects of the case or could perhaps have argued them more
forcefully and/or cited binding precedents to the Court and thereby enjoyed a favourable verdict.

6. CONCLUSION

The hypothesis that Section 114 of C.P.C. is an exception to the rule that once the judgment is
pronounced and signed the court becomes functus officio is fully proved as According to the
section, a person aggrieved by a decree or order may apply for review of a judgment.The basic
philosophy inherent in the recognition of the doctrine of review is acceptance of human
fallibility. If there is an error due to human failing, it cannot be permitted to perpetuate and to
defeat justice. Such errors or mistakes must be corrected to prevent miscarriage of justice.

The Right of Review is granted by Civil Procedure Code as a remedy to be sought for an applied
under special circumstances and conditions. The objective of this right is to correct the error or
any mistake made in the decision of the court. This right is subjected to many limitations and
conditions mentioned in Order 47 of the Civil Procedure Code. Article 137 of the Indian
Constitution allowed the Supreme Court to review its own orders and judgment. The objective
behind this power is to ensure justice. It is rightly said that “Law has to bend before justice”.

By thorough study of Section 114 read with Order 47 of C.P.C. in the light of LILY THOMAS
V. U.O.I. it can be concluded that the power of review can be exercised for correction of a
mistake and not to substitute a view. Such powers can be exercised within the limits of the
statute dealing with the exercise of power. The review cannot be treated an appeal in disguise.

29
AIR 2006 SC 1634

26
The mere possibility of two views on the subject is not a ground for review. Once a review
petition is dismissed no further petition of review can be entertained.

Also, the mere fact that two views on the same subject are possible is no ground to review the
earlier judgment passed by a Bench of the same strength.

It follows, therefore, that the power of review can be exercised for correction of a mistake and
not to substitute a view.

BIBLIOGRAPHY
 BOOKS:-

1. The Code of Civil Procedure, 1908 [Act No. V of 1908], Bare Act.
2. C.K. TAKWANI, Civil Procedure with Limitation Act,1963 564 (Eastern Book
Company,7th edition 2013
3. Haque, Hmidul J., Trial of Civil Suits & Criminal Cases, 2nd Edition

 WEBSITES:-

1. https://www.manupatrafast.in
2. https://blog.ipleaders.in
3. https://www.lawnn.com
4. http://www.legalservicesindia.com
5. http://lawfultalks.com
6. https://indiankanoon.org
7. https://www.casemine.com
8. https://articlesonlaw.wordpress.com

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