Code of Civil Procedure Project

On
Review under CPC: A Critical Analysis of the Underlying
Judicial Policy

Submitted to:

Mr. Vishal Dixit

Faculty of Code of Civil Procedure

BY

Prakash Kumar
B. A. LL. B. (Hons.) Student
Semester – IX, Section – B, Roll No. 102

Submission Date:
8th December 2020

Hidayatullah National Law University

Uparwara Post Abhanpur, Naya Raipur (Atal Nagar) – 492002
(C.G.)
1|Page
 Declaration

I, Prakash Kumar, hereby declare that this project work is an original piece of research and is
not a result of plagiarism, the sources of data has been adopted from other sources as well and
proper mention about such sources has been made in the form of footnotes and in bibliography.

I have completed this project work under the guidance of Mr. Vishal Dixit, Faculty of Code
of Civil Procedure, Hidayatullah National Law University Raipur (C.G).

I|Page
 Certificate
This is to certify that Mr. Prakash Kumar, Roll Number 102, student of Semester IX, Section
B of B.A.LL.B.(Hons.), Hidayatullah National Law University, New Raipur (Chhattisgarh) has
undergone research of the project work titled “Review under CPC: A Critical Analysis of the
Underlying Judicial Policy”, in partial fulfilment of the subject of Code of Civil Procedure.

Place: Atal Nagar ….…….…………………………….

Date: 08.12.2020 Mr. Vishal Dixit
Faculty of Code of Civil Procedure
Hidayatullah National Law University, Raipur (C.G.)

II | P a g e
 Acknowledgments

I feel highly elated to work on the project “Review under CPC: A Critical Analysis of the
Underlying Judicial Policy”. The practical realization of the project has obligated the assistance
of many persons.

First and foremost, I would like to thank my course teacher Mr. Vishal Dixit for providing me
the topic of my interest. Also, I would like to thank our Vice Chancellor Sir for providing the
best possible facilities. Thanks to my Parents and all the member of HNLU family who gave
me the strength to accomplish the project with sheer hard work and honesty.

This Project venture has been made possible due to the generous co-operation of various
persons. To list them all is not practicable, even to repay them in words is beyond the domain
of my lexicon. I would also like to extend my warm and sincere thanks to all my colleagues,
who contributed in innumerable ways in the accomplishment of this project.

Prakash Kumar
B.A.LL.B. (Hon.)
Semester – IX, Section B,
Roll no. 102

III | P a g e
 Contents

Introduction ......................................................................................................................... 1

Research Methodology ............................................................................................... …….2

Objectives… ........................................................................................................................ 2

Functus Officio ......................................................................................................................3

Meaning of Review ................................................................................................................ 3

Power of Review of the Supreme Court ................................................................................. 3

Power of Review of High Court ............................................................................................. 4

Substantive Law under Section 114 ....................................................................................... 4

Procedure and Grounds of Review under Order XLVII …………………………………….5

Conclusion ............................................................................................................................ 8

References… ......................................................................................................................... .9
 Introduction

The Oxford Dictionary defines the term ‘Review’ as “A formal assessment of something with
the intention to institute a change if necessary”. In fact, the concept under the law is consistent
with the description in question, with in addition to the conditions for applicability, specific
grounds along with other general rules.

A judgement is open to review, inter alia, in compliance with Rule 47 Rule 1 of the Civil
Procedure Code,1908, there is a manifest error in the face of the record. A review of a decision
is a serious move and it is only reasonable to resort to it unwillingly when a conspicuous
mistake or patent error or a serious error has previously crept into judicial fallibility. It is
appropriate to confirm an examination on the grounds referred to in Order 47 Rule 1 of the
CPC.

The universal acceptance of human fallibility is the essential philosophy inherent in it. Yet the
courts and even the laws are firmly in favour of the finality of the judgement legitimately and
duly taken in the sphere of law. Exceptions have been made both constitutionally and judicially
to remedy unintended errors or miscarriages 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. All decrees or orders cannot be reviewed. This
right is subjected to many limitations and conditions mentioned in Order 47 of the Civil
Procedure Code.

The procedure for review is provided by Order XLVII of the Code of Civil Procedure, 1908
(CPC), together with Section 114 of the Act. Section 114 merely establishes the conditions
necessary for the submission to the 'court' of an application for review by which a decree or
order sought to be examined in the context of the application has been passed or made. While
Order XLVII lays down grounds for review and other procedural rules governing the same,
together with the same conditions as listed in the section.

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”.

1|Page
 Research Methodology

Nature of Study:

This project work is descriptive & analytical in approach. It is largely based on secondary &
electronic sources of data. Books & other references as guided by faculty of Human Rights are
primarily helpful for the completion of this project.

Objectives:

Various objectives are to be achieved by this project; which are mentioned below.

o To discuss the Provisions of Review under the Code of Civil Procedure, 1908.
o To discuss the history and grounds of Review of Judgements.
o To discuss the underlying judicial policy of the Procedure of Review.

Source of Study:

Secondary sources have been mainly used for making this project such as books, articles, and
internet websites

2|Page
‘Functus Officio’
The Latin doctrine 'functus officio' refers to a decision bestowed by every court after due
process of law. The doctrine means that a case cannot be filed again after a due and fair hearing
and trial, a judgement in the case has been pronounced. An exception to the Latin doctrine of
functus officio is the right to file for a review of a decision. On the application of an aggrieved
party or person, the proceeding for review of Judgment will be initiated.

Meaning of Review of a Judgement:

The dictionary definition of the review is to examine or study again.' The review of the
judgement is therefore to re-examine other facts and the judgement of the case. The review of
the judgement is the substantive power of review by the court referred to in Section 114 of the
CPC. This section does not include any restrictions and conditions for analysis. Limitations
and conditions are set out in Order 47 of the Code of Civil Procedure. Order XLVII contains
nine rules which lay down certain conditions for the review. The power of review is conferred
by statute and this intrinsic power to review vests in court only.

In order to understand the Procedure of Review two important aspects have to be looked upon:

1. Same Court: According to Order 47 Rule 1 the application to review a decree or order
lies in the same court which has passed such a decree or has made such an order.
2. Court: The term “court” has not been defined by the Code but it implies to “Any Court
having the jurisdiction to try suits of Civil-nature.1” Such civil jurisdiction can be
imposed on the courts by the CPC itself, or on the courts by special judgments, or on
the Supreme Court and the High Courts under their Civil Appellate Jurisdiction2 by the
Constitution of India.

Power of Review of the Supreme Court:

The Supreme Court also falls under the scope of the word "Court" when it hears any civil suit.
It was however, independently empowered to have jurisdiction to review under Article 137 of
the Constitution, albeit in cases other than civil and criminal cases, as those cases are regulated
by the CPC and the Code of Criminal Procedure only.

1
Section 9, The Code of Civil Procedure, 1908.
2
Articles 132, 133 and 225 of the Constitution of India, 1950.

3|Page
Power of Review of High Court: The High Court’s enjoy the Status of Civil Court under the
Code of Civil Procedure, 1908. Also, the Supreme Court in Shivdev Singh v. State of Punjab3
stated that: “It is sufficient to say that there is nothing in Article 226 of the Constitution to
preclude a High Court from exercising the power of review which inheres in every Court of
plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors
committed by it.”

Section 114 of Civil Procedure Code, 1908 lays down the Substantive power of Review:

Section 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, which passed the decree or made
the order, and the court may make such order thereon as it thinks fit, may apply for a review of
judgment to the court.4

According to Section 114 any person who considers himself aggrieved by any decree or order
can file for a review of a decree or an order. It is legally clear, in the face, that the interpretation
is that the person filing a review may not actually have to be a party to the suit; rather, he can
merely derive a valid interest in the suit or according to him, the interest has been adversely
affected by the decision of that suit. Therefore, any such individual would have Locus Standi
to file a review.

In Union of India v. Nareshkumar Badrikumar Jagad & ors. the Supreme Court had given
a third party the right of review on the condition that he/she may be aggrieved by the Judgement
or order passed by the court in some respect.

In Hari Singh v. S Seth5 the court held that if an application for review is subsequently filed,
there is no legal bar to appeal on the basis of such a decree or order. If the appeal is so preferred

3
AIR 1963 SC 1909.
4
Code of Civil Procedure,1908.
5
AIR 1996 Del 2

4|Page
and determined by the speaking order i.e., on merits, before the application for review, then it
is not necessary to proceed with the request for review.

Order XLVII of the Code of Civil Procedure lays down grounds for Review and other
procedural rules governing the same:

Grounds for Review:

o Discovery of new and significant issue or proof.
o Mistake or blunder
o Other sufficient reason.
o

Discovery of new and significant issue or proof:

When new and important evidence is discovered by the applicant and he/she was not in
knowledge or due to negligence not able to provide the evidence when the decree was passed.
Illustration: “A sued B for a sum of money alleged to be due under an agreement and obtained
the decree for the same, against which B, subsequently filed an appeal in the Privy Council,
and while the appeal was pending, A obtained another decree against B on the strength of the
former decree, for another sum of money alleged by him to have become due under the same
agreement and later Privy Council reversed the former decree in the appeal, on the basis of
which B applied to the court which had passed the second decree, for the Review on the ground
of the decision of Privy Council and so was accepted and held by the court to be a new and
important matter.”6

Mistake or blunder:

Error or mistake should be such that it is very clear and noticeable in the face of it and thus any
error contained in the decision after a long reasoning and a law-based examination cannot be
said to be one evident on the face of the record as a basis for appeal. Such mistake or error,
however, may be both factual and lawful.

In Usha Rani Banik v. Hardas7 the Court held that: Power of review is available only when
there is an error apparent on the face of the record and not on the erroneous decision. An error

6
SIR DINSHAH FARDUNJI MULLA, THE CODE OF CIVIL PROCEDURE 1908, 1900 (15th ed.
2012).
7
AIR 2005 Gau 1.

5|Page
apparent on the face of the record, can’t be defined precisely and it has to be decided judicially
on the facts of each case.

Other sufficient reason:

In Lily Thomas v. Union of India8, it was held that the terms 'any other sufficient reason' shall
mean a reason sufficient on the ground at least comparable to that specified in the law.

In Hari Shankar V. Anant Nath9 it was held that: Failure to adhere to legal provision which
required the court to act in a particular manner would fall within the meaning of “Sufficient
Reason” as analogous to the “Error Apparent on the Face of the Record”

In Soumitra Panda v. A.K. Agarwal10 it was held that the total misreading of the admitted
records doesn’t come within the ambit of the ‘discovery of new facts’ and ‘error apparent on
the face of record’. Hence, it comes within the ambit of ‘any other sufficient reasons. And the
review application is required to be supported by an affidavit.

Order XLVII Rule 4:

1. If it appears to the court that there is no prescribed basis for review, the request shall be
rejected.
2. If the same is granted then it should only be granted after the service of notice upon the
opposite party enabling thereby him to appear and present his case in favour of the
decree or order, sought to be reviewed

Order XLVII Rule 5:

The ideal judge to review the decision would be the same judge. That the same judge is smarter
and more successful than others in evaluating his or her own decision. Except if the judge is
absent for a period of six months or more from the filing date of the request for review.

Order XLVII Rule 6:

If the judgement is issued by more than one judge, then the majority will make the decision on
the application. If a review application is heard by more than one judge, the bench is split and
may refuse the request.

8
(2000) 6 SCC 224
9
1949 F.C.R 36.
10
AIR 1994 Cal 165.

6|Page
Order XLVII Rule 7:

An order for rejection of an application for review is not appealable. The party filing the
request for review does not re-apply if their request for review is denied by the Judges or the
Court. The approved application is however, appealable.

Where the rejection of the application is due to the failure of the applicant to appear on the
date set for the hearing, the applicant may apply for an order to reinstate his application and
the court shall reinstate his appeal, it shall be provided that there has been a sufficient ground
for failure to appear.
The status of the review application must be notified to the opposite party.
Order XLVII Rule 8: The court will proceed with the process of rehearing the case when the
court grants the application for a review judgement. And the decision following the review will
be binding on the parties.11

Order XLVII Rule 9: “Bar of certain application- No application to review an order made
on an application for a review or a decree or order passed or made on a review shall be
entertained.”

11
Moran M.B. Catholicos v. Mar Poulose AIR 1954 SC 526.

7|Page
 Conclusion
The Court is granted the right to review its own judgement. The right to review a decision is
given in Section 114 and Order 47 of the Civil Procedure Code. Section 114 only allows for
the right to appeal the decision and there are restrictions and conditions in CPC order 47. The
Supreme Court was empowered by Article 137 of the Indian Constitution to review its own
orders and judgments. The objective behind this power is to guarantee justice. "Law must bend
before justice" is rightly said. In Kamlesh Verma v. Mayawati & Ors.12 the Court held that
it is the implied duty of the court to exercise the power of review with the great caution, only
after being satisfied as to existence of any of the grounds mentioned.

12
(2013) 8 SCC 320.

8|Page
 References

Books and Articles:

1. Dinshaw F. Mulla, the Key to Indian Practice: A Summary of the Code of Civil
Procedure, 1908, (11th 2015).
2. C.K. Takwani, Civil Procedure with Limitation Act 1963, 1 January 2019
3. A Review: it is not ‘An Appeal in Disguise”, Y. Srinivasa Rao, available at
https://articlesonlaw.wordpress.com/2018/04/14/a-review-it-is-not-an-appeal-in-
disguise/.
4. Review of Judgement Under CPC, Varshita Dogra, January 4, 2019, available at
https://blog.ipleaders.in/review-judgement-cpc/.
5. Meaning and Procedure of Review under the Code of Civil Procedure, 1908,
https://www.legalbites.in/meaning-and-procedure-of-review-under-the-code-of-civil-
procedure-1908/.

Websites:

1. www.wikipedia.org
2. www.wordpress.com
3. blog.ipleaders.in
4. www.lega;bites.in

9|Page