SECOND APPEAL

(S.100)

100. Second appeal:

(1) Save as otherwise expressly provided in the
body of this Code or by any other law for the
time being in force, an appeal shall lie to the
High Court from every decree passed in appeal
by any Court subordinate to the High Court, if
the High Court is satisfied that the case involves
a substantial question of law.
(2) An appeal may lie under this section from an
appellate decree passed ex parte.
(3) In an appeal under this section, the
memorandum of appeal shall precisely state the
substantial question of law involved in the
appeal.
(4) Where the High Court is satisfied that a
substantial question of law is involved in any
case, it shall formulate that question.
(5) The appeal shall be heard on the question so
formulated and the respondent shall, at the
hearing of the appeal, be allowed to argue that
the case does not involve such question:
Provided that nothing in this sub-section
shall be deemed to take away or abridge the
power of the Court to hear, for reasons to be
recorded, the appeal on any other substantial
question of law, not formulated by it, if it is
satisfied that the case involves such question.]
101. Second appeal on no other grounds.—No
second appeal shall lie except on the ground
mentioned in section 100.
102. No second appeal in certain cases.—No
second appeal shall lie from any decree, when
the subject matter of the original suit is for
recovery of money not exceeding twenty-five
thousand rupees.]
103. Power of High Court to determine issue of
fact.—In any second appeal, the High Court
may, if the evidence on the record is sufficient,
determine any issue necessary for the disposal
of the appeal,—
(a) which has not been determined by the lower
Appellate Court or both by the Court of first
instance and the lower Appellate Court, or
(b) which has been wrongly determined by such
Court or Courts by reason of a decision on such
question of law as is referred to in section 100.]
 APPEAL FROM APPELLATE DECREE
[S. 100.Appeal]
• Second appeal is filed only when the case
involves substantial question of law and on
no other ground.
• Prior to Amendment Act of 1976, decision
contrary to law or to usage having force of
law were the ground of second appeal under
S. 100. However, the legislature restricted the
scope of section 100 in 1976 amendment and
now second appeal can be preferred only on
question of law.
Substantial question of law - Meaning:
• The expression substantial question of law is
not defined in the code but it refers to such
questions which are necessary to be decided
and affects the rights of the party.
In the Chunnilal Mehta And Sons Ltd V. Century
Spinning And Manufacturing Company Ltd, AIR 1962 SC
1314, Supreme Court laid down the following test to
determine whether a question of law is substantive
question of law covered under section 100.
1) Whether it is of general public importance, or
2) Whether it directly and substantially affects the
rights of the parties, and
3) Whether it is either an open question in the sense
that it is not a finally settled by this court or by
Privy Council or Federal court, or is not free from
difficulty or calls for discussion of alternative views.
• Law Commission in its 34th Report, made it
clear that substantial questions of law means
a substantial question of law between the
parties in the case involved. The decision
should turn in one way or the other on a
particular view of law.
Cases Which Involve Substantial Question
Of Law:
Following questions can be set to be substantial
question of law-
1) A question of law where there is a conflict of
decisions, or
2) Recording a finding without any evidence on record;
or
3) Placing onus of proof on wrong parties, or
4) Taking into consideration irrelevant or inadmissible
evidence, or
5) Misconstruction of evidence or document.
• Disregard or non consideration of relevant or
admissible evidence.
• A question of admissibility of Evidence.
Cases Which Do Not Involved Substantial
Question Of Law:
Following questions cannot be said to be
substantial question of law-
1) Finding of fact recorded by the court,
2) Concurrent findings of the facts of the courts
below,
3) Too general questions,
4) Where question is already decided by the
Supreme Court.
CASES WERE NO SECOND APPEAL LIES-
1) Where the decree is passed in second appeal by
a single judge [ S.100A]
2) Where value of subject matter of original suit for
recovery of money does not exceed 25000/-
Power of High Court to determine any Issue
of Fact [S.103]
• This section empowers the High Court to
determine any issue necessary for disposal of
second appeal if-
a) Such issue has not been determined by
Appellate court or court of first instances; or
b) Such issue was wrongly determined by such
court due to a decision on substantive
question of law.
• In Narayan Gramani v. Mariammal (2018) 18
SCC 645 it was held that-
• Generally, substantial question of law is
framed in the absence of respondent. He is
given liberty to urge that the case does not
involve substantial question of law.
 Appeal From Orders

Section 104-108 and Order 43

104. Orders from which appeal lies-
(1) An appeal shall lie from the following orders,
and save as otherwise expressly provided in the
body of this Code or by any law for the time
being in force, from no other orders:—
(ff) an order under section 35A;]
[(ffa) an order under section 91 or section 92 refusing leave to
institute a suit of the nature referred to in section 91 or section 92,
as the case may be;]
(g) an order under section 95;
(h) an order under any of the provisions of this Code imposing a fine
or directing the arrest or detention in the civil prison of any person
except where such arrest or detention is in execution of a decree;
(i) any order made under rules from which an appeal is expressly
allowed by rules:
[Provided that no appeal shall lie against any order specified in
clause (ff) save on the ground that no order, or an order for the
payment of a less amount, ought to have been made.]
(2) No appeal shall lie from any order passed in appeal under this
section.
105. Other orders.—(1) Save as otherwise expressly provided,
no appeal shall lie from any order made by a Court in the
exercise of its original or appellate jurisdiction; but where a
decree is appealed from, any error, defect or irregularity in any
order, affecting the decision of the case, may be set forth as a
ground of objection in the memorandum of appeal.
(2) Notwithstanding anything contained in sub-section (1), where
any party aggrieved by an order of remand 2*** from which an
appeals lies does not appeal therefrom, he shall thereafter be
precluded from disputing its correctness.
106. What Courts to hear appeals.—Where an appeal from any
order is allowed it shall lie to the Court to which an appeal would
lie from the decree in the suit in which such order was made, or
where such order is made by a Court (not being a High Court) in
the exercise of appellate jurisdiction, then to the High Court.
 Appealable Orders
Section 104 and Order 43 Rule 1 enumerate certain
orders of the court from which an appeal may be
preferred. Following are few illustrations:-
1) Order under S.35A imposing costs for vexatious
claims or defenses.
2) Order under S. 91 and 92 refusing leave to institute a
suit of the nature referred in Section 91 and 92.
3) Order under S. 95 providing compensation for
obtaining arrest or detention in civil prison of any
person except in execution of decree.
4) An order under Rule 10 of Order 7 returning a
plaint to be presented in proper court except
where procedure specified in Rule 10A has been
followed.
5) In order under Rule 9 Order 9 rejecting and
application for an order to set aside the dismissal
of suit.
6) And order under Rule 13 of Order 9 rejecting and
application for an order to set aside a degree
passed ex-parte.
7) An order under Rule 21 of Order 11 which states
about dismissal of suit or struck out of the
defense in case of the non compliance with any
order to answer interrogatories, or for
discoveries or inspection of documents.
8) An order under Rule 34 of order 21 on an
objection to the draft of a document or of
endorsement.
9) Other order enumerated under Rule 1 of Order
43.
105. Other orders.—(1) Save as otherwise expressly
provided, no appeal shall lie from any order made by
a Court in the exercise of its original or appellate
jurisdiction; but where a decree is appealed from,
any error, defect or irregularity in any order, affecting
the decision of the case, may be set forth as a
ground of objection in the memorandum of appeal.
(2) Notwithstanding anything contained in sub-section
(1), where any party aggrieved by an order of remand
2*** from which an appeals lies does not appeal
therefrom, he shall thereafter be precluded from
disputing its correctness.
Orders which are made non-appealable can be
challenged in regular Appeal filed under S.96. [(2006)
3 Civil Law Times 319 (P&H)].
A party need not to file an appeal against all
interlocutory matters and he can challenge the same
in an appeal filed against from the original decree if
that interlocutory order has affected the decision of
the case.[2008 AIHC 2997]

S.105- No Second Appeal from Order: No appeal from

order of the court can be preferred unless provided by
the code under Section 104 and Order 43 Rule 1.
 S.109. When appeals lie to the Supreme
Court:
Subject to the provisions in Chapter IV of Part V of the
Constitution and such rules as may, from time to time, be
made by the Supreme Court regarding appeals from the
Courts of India, and to the provisions hereinafter contained,
an appeal shall lie to the Supreme Court from any
judgment, decree or final order in a civil proceeding of a
High Court, if the High Court certifies—
(i) that the case involves a substantial question of law of
general importance; and
(ii) that in the opinion of the High Court the said question
needs to be decided by the Supreme Court.]
 Appeal to Supreme Court
Section 109 allows appeal to the Supreme court
against any judgment, decree or final order in a
civil proceeding of a High Court if the High
Court certifies that the case involves
substantial question of law which needs to be
decided by the Supreme court.
Such right is subject to constitutional provisions
and rule of Supreme court.
 Not Applied on SLP etc.
112. Savings.—
(1) Nothing contained in this Code shall be deemed—
(a) to affect the powers of the Supreme Court under article
136 or any other provision of the Constitution; or
(b) to interfere with any rules made by the Supreme Court,
and for the time being in force for the presentation of
appeals to that Court, or their conduct before that
Court.]
(2) Nothing herein contained applies to any matter of
criminal or admiralty or vice-admiralty jurisdiction or
to appeals from orders and decrees of Prize Courts.
Review, Revision and Reference
 Reference
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.] [Added by Act 24 of 1951 sec. 2 ( w.e.f. 1-4-1950)]
 REFERENCE
Order 46
1. Reference of question to High Court.—Where,
before or on the hearing of a suit or an appeal in
which the decree is not subject to appeal, or where,
in the execution of any such decree, any question of
law or usage having the force of law arises, on which
the Court trying the suit or appeal, or executing the
decree, entertains reasonable doubt, the Court may,
either of its own motion or on the application of any
of the parties, draw up a statement of the facts of
the case and the point on which doubt is entertained,
and refer such statement with its own opinion on the
point for the decision of the High Court.
2. Court may pass decree contingent upon decision of High Court.—
The Court may either stay the proceedings or proceed in the case
notwithstanding such reference, and may pass a decree or make an
order contingent upon the decision of the High Court on the point
referred:
But no decree or order shall be executed in any case in which such
reference is made until the receipt of a copy of the judgment of the
High Court upon the reference.
3. Judgment of High Court to be transmitted and case disposed of
accordingly.—The High Court, after hearing the parties if they appear
and desire to be heard, shall decide the point so referred, and shall
transmit a copy of its judgment, under the signature of the Registrar,
to the Court by which the reference was made; and such Court shall,
on the receipt thereof, proceed to dispose of the case in conformity
with the decision of the High Court.
4. Cost of reference to High Court.—The costs (if any)
consequent on a reference for the decision of the High
Court shall be costs in the case.
[4A. Reference to High Court under proviso to section 113.
—The provisions of rules 2, 3 and 4 shall apply to any
reference by the Court under the proviso to section 113 as
they apply to a reference under rule 1; and]
5. Power to alter, etc., decree of Court making reference.
—Where a case is referred to the High Court under rule 1
[or under the proviso to section 113], the High Court may
return the case for amendment, and may alter, cancel or set
aside any decree or order which the Court making the
reference has passed or made in the case out of which the
reference arose, and make such order as it thinks fit.
6. Power to refer to High Court questions as to
jurisdiction in small causes.—(1) Where at any time
before judgment a Court in which a suit has been
instituted doubts whether the suit is cognizable by a
Court of Small Causes or is not so cognizable, it may
submit the record to the High Court with a statement
of its reasons for the doubt as to the nature of the
suit.
(2) On receiving the record and statement, the High
Court may order the Court either to proceed with the
suit or to return the plaint for presentation to such
other Court as it may in its order declare to be
competent to take cognizance of the suit.
7. Power to District Court to submit for revision
proceeding had under mistake as to jurisdiction in
small causes.—
(1) Where it appears to a District Court that a Court
subordinate thereto has, by reason of erroneously
holding a suit to be cognizable by a Court of Small
Causes or not to be so cognizable, failed to exercise a
jurisdiction vested in it by law, or exercised a
jurisdiction not so vested, the District Court may, and
if required by a party shall, submit the record to the
High Court with a statement of its reasons for
considering the opinion of the Subordinate Court with
respect to the nature of the suit to be erroneous.
(2) On receiving the record and statement the High
Court may make such order in the case as it thinks
fit.
(3) With respect to any proceedings subsequent to
decree in any case submitted to the High Court
under this rule, the High Court may make such
order as in the circumstance appears to it to be
just and proper.
(4) A Court subordinate to a District Court shall
comply with any requisition which the District
Court may make for any record or information for
the purposes of this rule.
 OBJECT OF REFERENCE
Section 113 read with order 46 of the court deals with
power of subordinate courts to refer a case to the high
court for its opinion.
The object of the reference is to obtain opinion of the High
Court on question of law in order to avoid commission of
any error which could not be remedied later on.
As even District court cannot declare or hold a provision
unconstitutional, therefore, Court is entitled to make a
reference when the court doubts that a provision is
unconstitutional and there is no decision on the point.
 Grounds Of Reference:
Section 113 and order 46 rule one lay down following
Grounds or circumstances when reference can be
made to the High Court-
1- Where the court is satisfied that the case pending
before it involves a question as to the validity of any
act, ordinance or regulation and,
i. Such question is necessary to be determined for
disposal of the case, and
ii. The court is of the view that such Act, Ordinance or
regulation or any of its provision is ultra vires, and
iii. There is no such determination of its validity by High
court or Supreme Court. [Proviso to Section 113].
2-Where the subordinate court entertains a
reasonable doubt as to the any question of law
or usage having the force of law[Order 46 Rule 1].
In the first case, above, the reference is
obligatory and in second case it is optional.
Conditions for making Reference: Before any
reference is made to the High Court, the following
conditions must be fulfilled:
1) There must be a pending suit or appeal in which
the decree is not subject to appeal or a pending
execution proceeding.
2) The question of law must arise in the course of
such suit, appeal or proceeding and the court
entertains reasonable doubt on such question.
Who may Apply: According to Order 46 Rule 1, only
a court can refer a case either on an application of a
party or suo motu.
 Procedure to be followed
• Order 46 lay down following procedure to be followed in case of
reference:
1. The referring court should draw up a statement of the facts of
the case, formulate the question of law on which opinion is
sought, give its opinion thereon and refer the case of High
Court [Rule1, 4A].
2. The court may either stay the proceedings or pass a decree or
order contingent upon the decision of the High Court [2].
3. The High court shall hear the parties and decide the point
referred to it and transmit the copy of its judgment signed by
the Registrar to the court which made the reference.
4. Upon receiving the copy, the referring court shall dispose of
the case in conformity with the decision of High Court [Rule
3].
Other instances where reference can be made: The
court may also submit the record to the High Court in
following case:
1. Where the court doubts whether or not suit is
cognizable by Court of Small Causes and such
doubts is entertained before judgment is
pronounced.[Order 46 Rule 6]
2. Where the District Court is of the opinion that a
subordinate court has exercised jurisdiction not
vested in it or failed to exercise jurisdiction so vested
by reason of erroneously holding that a suit is or is
not cognizable by Court of Small Causes[Rule 7].
Alteration Of Decree Of Court Making Reference
[ Order 46 Rule5]:

Rule 5 empowers the High court to return the

case for amendment if referring court fails to
comply with conditions laid down for making
reference.
Furthermore, the High court may alter, cancel
or set aside any decree or order which the
referring court has passed make such order as it
thinks fit.
 Review
S. 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.
 ORDER XLVII
REVIEW
1. Application for review of judgment
(1) Any person considering himself aggrieved—
(a) by a decree or order from which an appeal is allowed, but
from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed, or
(c) by a decision on a reference from a Court of Small Causes,
and who, from the discovery of new and important matter or
evidence 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 was passed or order made, or on account of some
mistake or error apparent on the face of the record or for any
other sufficient reason, desires to obtain a review of the decree
passed or order made against him, may apply for a review of
judgment to the Court which passed the decree or made the order.
(2) A party who is not appealing from a decree or order may apply
for a review of judgment notwithstanding the pendency of an
appeal by some other party except where the ground of such
appeal is common to the applicant and the appellant, or when,
being respondent, he can present to the Appellate Court the case
on which he applied for the review.
[Explanation.—The fact that the decision on a question of law on
which the judgment of the Court is based has been reversed or
modified by the subsequent decision of a superior Court in any
other case, shall not be a ground for the review of such judgment.]
2. [To whom applications for review may be made.]—Rep. by the
Code of Civil Procedure (Amendment) Act, 1956 (66 of 1956) s. 14.
3. Form of applications for review.—The provisions as to the form
of preferring appeals shall apply, mutatis mutandis, to applications
for review.
4. Application where rejected.—(1) Where it appears to the
Court that there is not sufficient ground for a review, it shall
reject the application.
(2) Application where granted.—Where the Court is of opinion
that the application for review should be granted, it shall grant
the same:
Provided that—
(a) no such application shall be granted without previous notice
to the opposite party, to enable him to appear and be heard
in support of the decree or order, a review of which is applied
for; and
(b) no such application shall be granted on the ground of
discovery of new matter or evidence which the applicant
alleges was not within his knowledge, or could not be
adduced by him when the decree or order was passed or
made, without strict proof of such allegation.
5. Application for review in Court consisting of two or more
Judges.—Where the Judge or Judges, or any one of the Judges,
who passed the decree or made the order, a review of which is
applied for, continues or continue attached to the Court at the
time when the application for a review is presented, and is not
or are not precluded by absence or other cause for a period of
six months next after the application from considering the
decree or order to which the application refers, such Judge or
Judges or any of them shall hear the application, and no other
Judge or Judges of the Court shall hear the same.
6. Application where rejected.—(1) Where the application for a
review is heard by more than one Judge and the Court is
equally divided, the application shall be rejected.
(2) Where there is a majority, the decision shall be according to
the opinion of the majority.
7. Order of rejection not appealable. Objections to order
granting application.—
(1) An order of the Court rejecting the application shall not be
appealable; but an order granting an application may be
objected to at once by an appeal from the order granting the
application or in an appeal from the decree or order finally
passed or made in the suit.]
(2) Where the application has been rejected in consequence of
the failure of the applicant to appear, he may apply for an
order to have the rejected application restored to the file, and,
where it is proved to the satisfaction of the Court that he was
prevented by any sufficient cause from appearing which such
application was called on for hearing, the Court shall order it to
be restored to the file upon such terms as to costs or otherwise
as it thinks fit, and shall appoint a day for hearing the same.
(3) No order shall be made under sub-rule (2) unless
notice of the application has been served on the
opposite party.
8. Registry of application granted, and order for re-
hearings.—When an application for review is granted,
a note thereof shall be made in the register and the
Court may at once re-hear the case or make such
order in regard to the re-hearing as it thinks fit.
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.
 Review
S.114 and Order 47
In legal sense, Review means the judicial re-
examination of the case by the same court.
S.114 gives substantive right of review in certain
cases and Order 47 provides the procedure for
it. It is an exception to the general rule that once
judgment is signed and pronounced by the
court, it becomes functus officio i.e. ceases to
have control over the matter.
 Object of Review
In S. Nagraj v. State of Karnataka, 1993 Supp. (4
SCC 595) Supreme Court held that the object of
review is to avoid error or mistakes in the
decision of court which must be corrected to
prevent miscarriage of justice.
 Ground:
1) In case where appeal is allowed against decree or order
but no appeal has been preferred by the aggrieved party.
2) In case where no appeal lies against a decree or order,
3) In case of judgment on a reference made from a court of
small causes.
4) In case of discovery of new and important matter or
evidence which, after the exercise of due diligence was
not within this knowledge and could not be produced by
him at the time when degree was passed or order made.
5) In case of some mistakes apparent on the face of the
record.
6) In case of other sufficient reasons.
 Meaning of Mistake or error apparent on
the face of the record:
An error is said to be apparent on face of record
which is the self evidence and requires no
examination or argument to establish it.
[Tungbhadra Industry Ltd v. Government of Andhra
Pradesh, AIR 1964 SC 1372]
In Satyanarayan Lakshmi Narayan Hegde vs
Mallikarjun BhavanAppa Tirumala, AIR 1960 SC 137
Supreme Court held that an error which has to be
established by detailed process of reasoning cannot
be said to be error apparent on face of record.
• No Inherent Power To Review: It is well
settled that the power of review is not an
inherent power and is conferred by law
either expressly or impliedly. If there is no
power of review, the order cannot be
reviewed. [Lily Thomas v. Union of India, AIR
2000 SC 1650]
 Procedure At Hearing:
Order 47 lays down the following procedure to be
followed in case of review-
1- An application is required to be made by
aggrieved party. The court cannot suo motu
review his judgment. If there is no ground of
review, the application will be rejected [Rule 4].
2-If application is to be granted, notice shall be
sent to the opposite party to enable him to
represent his case. If review is a filed on ground
of discovery of new matter, strict proof of the
same shall be given [Rule 4(2)].
3-The application shall be heard by the same judge
who passed the order or decree unless-
(a) he is no longer attached to the court, or
(b) he is precluded from hearing of the case due to his
absence or other cause for a period of 6 months after
the application[Rule 5].
4- The matter will be reheard on merits by the court
upon which the court may either confirm the
original decree or vary.
Appeal: The party aggrieved by order granting
application for review may appeal against it but and
order rejecting and application is not appealable.
 Revision
115. Revision:
(1) The High Court may call for the record of any case which has
been decided by any Court subordinate to such High Court and
in which no appeal lies thereto, and if such subordinate Court
appears—
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with
material irregularity,
the High Court may make such order in the case as it thinks fit:
[Provided that the High Court shall not, under this section, 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 favor of the party applying for revision would
have finally disposed of the suit or other proceedings.]
(2) The High Court shall not, under this section, vary
or reverse any decree or order against which an
appeal lies either to the High Court or to any Court
subordinate thereto.
(3) A revision shall not operate as a stay of suit or
other proceeding before the Court except where
such suit or other proceeding is stayed by the High
Court.
Explanation.—In this section, the expression “any
case which has been decided” includes any order
made, or any order deciding an issue in the course
of a suit or other proceeding.
 Meaning of Revision
• Revision is an act of revising with a view to
correct the errors.
Section 115 of the code empower High Court to
entertain a revision in any case decided by
subordinate Court to prevent the Subordinate
court from acting arbitrarily, capriciously and
illegally or irregularly in the exercise of their
jurisdiction.
Who May File Revision: A person aggrieved by an
order passed by a court subordinate of the High
Court may file a revision against the order.
A high court may even suo motu exercise
revisional jurisdiction under section 115.
 Conditions and Grounds:
1. The case must have been decided.
2. The court deciding the case must be
subordinate to the high Court
3. The order should not be appealable.
4. The subordinate Court must have:-
(a) exercised a jurisdiction not vested in it by law, or
(b) failed to exercise a jurisdiction so vested, or
(c) acted in the exercise of its jurisdiction illegally or
with material irregularity.
• In Pandurang Ramchandra Mandlik v. Maruti
Ramchandra Ghatge, AIR 1966 SC 153
Supreme Court held that under Section 115
High Court cannot correct the error of fact or
error of law, howsoever gross they may be,
unless such errors are related to the
jurisdiction of the court as mentioned in
section 115.
Case decided: S. 115 provides that the revision is
maintainable against ‘any case which has been
decided' by the court subordinate to High Court.
The expression ' case decided' has not been
defined in the code.
It give rise to a number of conflicting decisions
on the question whether the said expression
included an interlocutory order also?
Supreme court in Maj. SS Khanna v. Brig. FJ
Dhillon, AIR 1964 SC 497 held that the section
115 applies even to interlocutory orders. The
expression is of wide import and it includes civil
proceeding other than the suit also.
In Baldev Das Shivlal v. Filmistan Distributor
(India) (P) Ltd. The Supreme Court held that a
case may be said to have been decided if the
court adjudicates for the purpose of the suit
some rights or obligations of the parties in
controversy.
 Exercise Of Jurisdiction Not Vested By Law:
[Clause (a)]
The following cases have been held to be cases of unauthorized
assumption of jurisdiction by the subordinate Court :-
a) Where the lower court assumes jurisdiction which it does
not possess on account of the pecuniary or territorial
limits or by reason of the subject matter of the suit;
b) Entertains an appeal from an order which is not
appealable,
c) Entertains a suit or appeal which it has no jurisdiction to
entertain; or
d) Makes an order which it has no jurisdiction to make;
e) Allows withdrawal of a suit on a ground not contemplated
under order 23 rule 1;
f) Directing a subordinate Court to try a suit not triable by it.
 Failure To Exercise Jurisdiction:
[clause (b)]
[Some Illustration]

a) Refusal to entertain or rejection of plaint,

application, memorandum of appeal or review
application on the erroneous view that it has no
jurisdiction to entertain,
b) The rejection of a counter claim on the ground that
the original suit is dismissed for default,
c) Refusal to make reference under order 46 rule 7.
d) Refusal by the court to summon the deponent of an
affidavit for cross examination.
e) Failure of the executing court to construe the decree.
 Exercise Of Jurisdiction Illegally or With Material Irregularity:
[clause (c)]
[Some Illustration]

1) Where it decides a case without considering the evidence on record; or

2) Decides on evidence not legally taken or otherwise inadmissible. Or
3) Decides a case without recording reasons for its judgment; or
4) Does not apply it's mind to the facts and circumstances of the case; or
5) Fails to follow a decision of the High Court to which it is subordinate; or
6) Follows a decision which does not apply to the facts of the case; or
7) Decides a case in the absence of the party or without giving an
opportunity of the being heard to the party whose rights are adversely
affected by such decision.
8) In framing issues wrongly places burden of proofs,
9) Orders attachment before judgment in absence of any material to
support such order or without procedure under order 38
10. Passing a decree on the compromise by the guardian ad litem
without enquiring whether it was for the benefit of the
minor; [O.32, R.7]
11. Proceeds with the later suit ignoring the provision of Section
10 of the CPC;
12. Consolidate two suits without consents of the parties even
though the parties are not common and the issues are also
different;
13. Orders for the appearance of a Pardanashine lady in public;
14. Erroneously shuts out the evidence of party;
15. Does not consider Condonation of delay under Section 5 of
the Limitation Act, 1963;
16. Admits additional evidence in appeal without considering the
provision of order 41 rule 27 of the CPC;
17. Acted in violation of S. 113 of the CPC by holding an Act of
Parliament to be ultra virus;
 If Alternative Remedy Available
-No Revision
• Exercise of revisional jurisdiction is in the discretion of the
court and no party can claim it as of right.
• Before exercising revisional power, the High Court may
consider several circumstances and decide whether power
under section 115 of the code should be exercised in the
favor of the applicant before the court.
• One of the factor which the court usually considers is
availability of an alternative remedy to the aggrieved
party. Where such aggrieved party has alternative and
efficacious remedy, the court may not entertain a revision
under section 115 of the code.