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PROCEDURES

FOR
CHALLENGING JUDICIAL
ORDERS ETC.
AVAILABLE MECHANISMS

• REVIEW = BY THE SAME COURT


• APPEAL = BY THE APPELLATE COURT/ Supreme Court (SLP)
• REVISION = BY THE HIGH COURT
• PETITIONS UNDER ARTICLE 227 = BEFORE THE HIGH COURT
APPEALS

• There are two kind of appeals


• Appeals against decrees/judgments; (Ss. 96 & S.100)
• Appeals against order (S.104)
OBSERVATIONS
• The Right to appeal is a statutory right
• nobody has any natural right to appeal
• The statute must provide for such a right

• Once there is a statutory right, the right is treated as a substantive


one
• This observation, is however made in the context of first appeal
APPEALS AGAINST DECREES &
JUDGMENTS
• S. 96 : FIRST APPEAL (to be read with O. 41)
• an appeal shall lie from every decree passed by any Court exercising original
jurisdiction the Court authorized to hear appeals from the decisions of such
Court, unless provided otherwise.
• Appeals can lie from ex-parte decrees
• Appeals do not lie on orders passed on the consent of parties

• IF the decree in the preliminary decree is not challenged, there cannot


be any challenge of the same in the appeal from the final decree
• No decree is to be reversed, substantially varied or remanded on
account of any misjoinder or non-joinder of parties or causes of action
or any error, defect or irregularity in any proceedings in the suit, not
affecting the merits of the case or the jurisdiction of the Court:
APPEALS AGAINST DECREES &
JUDGMENTS
• S. 100 : Second Appeal (r/w O. 41 & O.42)
• 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.
• the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.
• The high court must formulate the substantial question of law
• 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 :
• S. 100A: where any appeal from an appellate decree or order is heard and decided by
a single Judge of a High Court, no further appeal shall lie from the judgment, decision
or order or such single Judge in such appeal or from any decree passed in such
appeal.
• No second appeal shall. lie in any suit of the nature cognizable by Courts of Small
Causes, when the amount or value of the subject-matter of the original suit does not
exceed three thousand rupees
APPEALS AGAINST DECREES &
JUDGMENTS
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.]
PROCEDURE IN APPEALS
• O. 41 lays down the procedure for :
• How to file the appeal
• The petitions for condonation of delay in filing the appeal
• Grounds that may be taken in appeal and effect of not taking a ground
• Amendment of appeal memmorandums
• Procedure of the appellate forum etc.
• An appeal can be dismissed in limine
IMPORANT POINTS
• The power of the appellete court to stay the operation of the decree/
proceedings/ execution (O.41 R. 5)
• Mere filing of the appeal does not operate as a stay
• he Appellate Court may for sufficient cause order stay of execution of such decree.
• The order of stay is effective from the date of communication of such order to the Court
of first instance
• No order for stay of execution shall be made unless the Court making it is
satisfied-
• (a) that substantial loss may result to the party applying for stay of execution unless the
order is made;
• (b) that the application has been made without unreasonable delay; and
• (c) that security has been given by the applicant far the due performance of such decree
or order as may ultimately be binding upon him.
• The Court may make an ex parte order for stay of execution pending the
hearing of the application.
IMPORTANT POINTS
• O.41 R. 22
• In the appeal respondent may object to decree as if he had
preferred a separate appeal
• that the finding against him in the Court below in respect of any issue
ought to have been in his favour
• May take cross objections (within one month)
APPEALS AGAINST ORDERS
• S 104 lists out a set of things against which an appeal can be filed.
• O. 43 adds to this list

• no other orders but these can be appealed against.


• 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.

• IF an order was appealable and a party failed to do so, he is


subsequently precluded from challenging its correctness.
• The court which has jurisdiction to hear the appeals from decrees hears
the appeals against the orders.
SCOPE OF POWERS OF THE APPELLATE
COURT (S. 107)
1) Subject to such conditions and limitations as may be prescribed, an Appellate Court
shall have power-
(a) to determine a case finally; (r/w O. 41 R. 24)
(b) to remand a case; (R/w O. 41 Rules 23-26)
(c) to frame issues and refer them for trial; (r/w O. 41 R.5)
(d) to take additional evidence or to require such evidence to be taken. (O. 41
R.27)

(2) Subject as aforesaid, the Appellate Court shall have the same powers and shall
perform as nearly as may be the same duties as are conferred and imposed by this
Code on Courts of original jurisdiction in respect of suits instituted therein.
REVIEW [S. 114 r/w O.47 R.1]
• 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 Court, 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.

A party who is not appealing from a decree or order may apply for a review of judgement 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 applies for the review.

the fact that the decision on a question of law on which the judgement 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 judgement
Conditions for review (o.47)
• Review can be asked for on the ground
• 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
• on account of some mistake or error apparent on the face of the record
• for any other sufficient reason

• Note : ”sufficient reason” must be analogous to the ones stated before that
OBSERVATIONS
• One needs to choose between review and appeal – both cannot be
simultaneously pursued
• Needs to be done with notice to the other party
• Review by the supreme court is under Article 137 and the power of
review under 137 is not curtailed by the CPC
• Review petition to be heard by the same judge that passed the
judgment, unless he is not available
• Where the application for a review is heard by more than one judge and
the Court is equally divided, the application shall be rejected.
• An order of the Court rejecting the application shall not be appealable;
OBSERVATIONS
• the condition precedent for entertaining the review would be to
record the finding as to whether at the initial stage, the party has
acted with due diligence
• “Due” means just and proper in view of the facts and circumstances of the
case.
What is error apparent?
“The error apparent signifies as an error which is evident per se
from the record of the case and does not require detailed
examination, scrutiny and elucidation either of the facts or the legal
position. In case the error is not self-evident and detection thereof
requires long debate and process of reasoning, it cannot be treated
as an error apparent on the face of the record for the purpose of
review”
• Haryana State Industrial Development Corporation & Ors. Etc. etc. V. Mansi & Ors etc.
etc., (2012) 7 SCC 200
What is error apparent?
• Apparent error on the face of record has been explained to include
• failure to apply the law of limitation to the facts found by the Court
• failure to consider a particular provision of a Statute or a part thereof
• a statutory provision has been applied though it was not in operation.
• Not considering a judgment that was binding on the court
• an error of procedure apparent on the face of the record
OBSERVATIONS
• “Review literally and even judicially means re-examination or re-
consideration. 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 ... ... ... The expression, `for any other
sufficient reason’ in the clause has been given an expanded
meaning and a decree or order passed under mis- apprehension of
true state of circumstances has been held to be sufficient ground
to exercise the power”
• S. Nagraj & Ors. V. State of Karnataka & Anr., 1993 Supp (4) SCC 595
REVISION (S.115)
The High Court may call for the record of an 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
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.]
REVISION (S.115) (Cont.)
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 favour of the party applying for revision, would have finally disposed of
the suit or other proceedings, or

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.
Observations
• A revision is available only when no appeal lies
• Basic purpose is to examine jurisdictional questions. Revision can
be sought for in cases of :
• Exercised a jurisdiction that it is not vested with
• Failed to exercise jurisdiction vested in it
• Acted in exercise of its jurisdiction illegally or with material irregularity
• There cannot be any interference on findings of fact (unless it relates to jurisdictional
questions)
• Pothina Narasamma V. Narupilla Ammaji, (2006) 9 SCC 749
• There cannot be any interference on any other ground except jurisdictional ones, no
matter how absurd the finding of fact or law is.
observations
• “illegality or material irregularity” refers to the manner in which
the decision is arrived at, not the decision itself.
• Procedural mistakes that result in injustice
• Breach of procedure/ material defects that affects the ultimate decision
Observations
• The key question is whether the order in favour of the party apply
for revision would have given finality for the suit or proceeding
• The revision is maintainable only if the answer is yes
• The same principle applies in the case of interim orders
• Finality does not necessarily mean the suit coming to an end!!
• Ex: a trial court dismisses a suit on an application from the D, on the ground that it is
barred by limitation. This is an order that can be subjected to revision.
Observations
• The grounds on which a revision can be entertained are narrow,
but there is wide discretion conferred on the court regarding the
orders that may be passed in exercise of the revisional jurisdiction.
• There is some conflict of views on the impact of the expression
“case decided
ARTICLE 227 of the CONSTITUTION
• To deal with situations not covered by any of the above provisions
• Article 227 of the Constitution confers on every High Court the
power of superintendence over all courts and tribunals
throughout the territories in relation to which it exercises
jurisdiction
• the power of superintendence so conferred on the High Court is
administrative as well as judicial, and is capable of being invoked
at the instance of any person aggrieved or may even be exercised
suo motu
• proceedings under Article 227 of the Constitution are not original
but only supervisory.
ARTICLE 227 of the CONSTITUTION
• Though the power is akin to that of an ordinary court of appeal,
yet the power under Article 227 is intended to be used sparingly
and only in appropriate cases for the purpose of keeping the
subordinate courts and tribunals within the bounds of their
authority and not for correcting mere errors.
• exercise of supervisory jurisdiction is not an original jurisdiction
and in this sense it is akin to appellate revisional or corrective
jurisdiction
ARTICLE 227 of the CONSTITUTION
• The power may be exercised in cases occasioning grave injustice
or failure of justice such as when
(i) the court or tribunal has assumed a jurisdiction which it does not have,
(ii) has failed to exercise a jurisdiction which it does have, such failure
occasioning a failure of justice, and
(iii) the jurisdiction though available is being exercised in a manner which
tantamounts to overstepping the limits of jurisdiction.
ARTICLE 227 of the CONSTITUTION
• Under 227, the Court can :
• quash or set aside the impugned proceedings, judgment or order;
• make such directions as the facts and circumstances of the case may warrant
• may substitute such a decision of its own in place of the impugned decision

• The Limitations on this power are self imposed


• Not exercised when there is an alternate efficacious remedy
• “the scope of interference by the High Court under Article 227 is restricted. The power of superintendence
conferred by Article 227 is to be exercised sparingly and only in appropriate cases in order to keep the
subordinate Courts within the bounds of their authority and not for correcting mere errors”
• “the power of superintendence under Article 227 of the Constitution cannot be invoked to correct an error of
fact which only a superior Court can do in exercise of its statutory power as the Court of Appeal; the High
Court cannot, in exercise of its jurisdiction under Article 227, convert itself into a Court of Appeal”
• Chandrasekhar Singh & Ors. Vs. Siva Ram Singh & Ors., (1979) 3 SCC 118;
ARTICLE 227 of the CONSTITUTION
• “if the findings of fact had been arrived at by non-consideration of
the relevant and material documents, the consideration of which
could have led to an opposite conclusion, the High Court can
interfere with that order under Article 227”
• Baby Vs. Travancore Devaswom Board & Ors., (1998) 8 SCC 310; Surya
Dev Rai vs Ram Chander Rai & Ors
REFERENCE (S.113)

• 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
• Where the court is satisfied that a case pending before it involves a
question as to validity of any law, 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.
O. XXVIIA
• IN any suit where there is a substantial question of law as to the
interpretation of any law the court shall not proceed to determine that
question unless a notice is given to attorney general (in case of central
acts) or advocate general (in case of state laws)
• in suits involving validity of any statutory instrument the Court shall
not proceed to determine that question except after giving notice
• (a) to the Government pleader, if the question concerns the Government, or
• (b) to the authority which issued the statutory instrument, if the question
concerns an authority other than Government.]
• The Court may at any stage of the proceedings order that the Central
Government or a State Government shall be added as a defendant in any
suit involving a substantial question of law

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