Reference, review and revision; caveat, restitution and the inherent powers of the court

1. Reference (section 113 and Order XLVI)

Subject to the conditions prescribed, any court may state a case and refer it for the opinion of the High Court (section 113). Order XLVI rule 1 sets the conditions: the reference may be made before or during the hearing of a suit or appeal in which the decree is not subject to appeal, or in execution of such a decree; a question of law or usage having the force of law must arise; and the court must entertain reasonable doubt on it. The court draws up a statement of facts and the point of doubt, with its own opinion, and refers it. It may stay the proceedings or pass a decree contingent on the High Court's answer.

Mandatory reference (proviso to section 113). Where the court is satisfied that a case pending before it involves the validity of an Act, Ordinance or Regulation, that the determination is necessary for disposing of the case, and that the provision is invalid but has not been so declared by its High Court or the Supreme Court, it must state a case and refer it. The High Court hears the parties and decides (rule 3), and the referring court disposes of the case in conformity (rule 5).

2. Review (section 114 and Order XLVII)

Who may apply (section 114, rule 1(1)). Any person aggrieved (a) by a decree or order from which an appeal is allowed but has not 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.

Grounds (rule 1(1)). Only three:

• discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant's knowledge or could not be produced when the decree was passed;
• mistake or error apparent on the face of the record; or
• any other sufficient reason, read as analogous to the first two.

The reversal of the legal basis of the judgment by a later decision of a superior court in another case is not a ground (Explanation). In Aribam Tuleshwar Sharma v. Aribam Pishak Sharma (1979) 4 SCC 389 the Court said a review is not an appeal in disguise: an error that has to be established by a long process of reasoning is not an error apparent on the face of the record. In Kamlesh Verma v. Mayawati, 2013 INSC 526, (2013) 8 SCC 320, the Court listed when review will and will not lie: it lies for the three grounds; it does not lie for re-arguing the case, for correcting an erroneous view taken earlier, or for a minor mistake of no consequence.

Procedure. The application goes to the same court and, if available, the same judge (rule 5). If there is no sufficient ground it is rejected; if granted, notice must first go to the other side (rule 4). An order rejecting review is not appealable (rule 7), but an order granting it may be appealed (Order XLIII rule 1(w)) or objected to in the appeal from the final decree. No review lies of an order made on a review application or of a decree passed on review (rule 9). Limitation: thirty days from the decree or order (Article 124, Limitation Act). A party may seek review even while another party's appeal is pending, unless the ground is common to both (rule 1(2)).

3. Revision (section 115)

The High Court may call for the record of any case decided by a court subordinate to it in which no appeal lies to the High Court, and may make such order as it thinks fit if the subordinate court appears:

• (a) to have exercised a jurisdiction not vested in it by law;
• (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 three grounds are about jurisdiction, not about errors of fact or law within jurisdiction. “Case decided” includes an order deciding an issue in the course of a suit (Explanation; earlier, Major S.S. Khanna v. Brig. F.J. Dillon, 1963 INSC 168, AIR 1964 SC 497).

The 1999 amendment (in force from 1 July 2002). The proviso now says the High Court shall not vary or reverse any interlocutory order or order deciding an issue unless the order, if made in favour of the applicant, would have finally disposed of the suit or proceeding. No revision lies against a decree or order from which an appeal lies to the High Court or to a subordinate court (section 115(2)), and a revision does not operate as a stay unless the High Court orders one (section 115(3)). In Shiv Shakti Co-op. Housing Society v. Swaraj Developers, 2003 INSC 244, (2003) 6 SCC 659, the Court held that the amended proviso applies to revisions pending on the date it came into force, and that the test is whether the order, had it gone the other way, would have ended the suit.

Article 227. The narrowing of section 115 does not touch the High Court's supervisory jurisdiction under Article 227 of the Constitution: Surya Dev Rai v. Ram Chander Rai, 2003 INSC 374, (2003) 6 SCC 675. A larger Bench in Radhey Shyam v. Chhabi Nath, 2015 INSC 160, (2015) 5 SCC 423, held that judicial orders of civil courts are not amenable to certiorari under Article 226, but remain open to correction under Article 227, a power to be used sparingly. Limitation for a revision is ninety days (Article 131).

4. Appeal, reference, review and revision compared

• Who moves. Appeal, review and revision are moved by an aggrieved party (the High Court may also act in revision of its own motion); a reference is made by the subordinate court itself.
• Which court decides. Appeal: the superior court. Reference and revision: the High Court. Review: the same court that passed the decree.
• Stage. A reference is made while the case is pending; appeal, review and revision follow a decision.
• Grounds. Appeal: fact and law (second appeal: substantial question of law). Reference: reasonable doubt on a question of law or usage. Review: the three grounds in Order XLVII rule 1. Revision: the three jurisdictional errors in section 115.
• Availability. Reference and revision are available only where no appeal lies; review lies where no appeal is allowed or none has been filed.

5. Caveat (section 148A)

A caveat is a precautionary notice by a person who expects an application to be made against him and wants to be heard before any order is passed. Where an application is expected to be made, or has been made, in a suit or proceeding instituted or about to be instituted, any person claiming a right to appear on its hearing may lodge a caveat (section 148A(1)).

• The caveator must serve notice of the caveat by registered post, acknowledgement due, on the person expected to make the application (sub-section (2)).
• If the application is then filed, the court must serve notice of it on the caveator (sub-section (3)), and the applicant must at once give him copies of the application and supporting papers at his expense (sub-section (4)).
• The caveat remains in force for ninety days from lodging, unless the application is made within that period (sub-section (5)).

Its main use is against ex parte interim injunctions and stays. The provision was inserted in 1976.

6. Restitution (section 144)

Where a decree or order is varied or reversed in appeal, revision or other proceeding, or set aside or modified in a suit brought for the purpose, the court which passed it must, on application, restore the parties as far as possible to the position they would have occupied but for the decree, and may order refund of costs, interest, damages, compensation and mesne profits. No separate suit lies for relief obtainable under the section (section 144(2)). The rule rests on the maxim that an act of the court shall prejudice no one. In South Eastern Coalfields Ltd. v. State of M.P., 2003 INSC 542, (2003) 8 SCC 648, the Court held that a party who has had the benefit of an interim order that is later vacated must restore the other side to the position it would have been in, including payment of interest, and that the principle of restitution applies even beyond the strict terms of section 144.

7. Enlargement of time, court-fees and inherent powers (sections 148, 149 and 151)

• Section 148. Where the court has fixed or granted a period for doing an act, it may enlarge it, not exceeding thirty days in total, even after it has expired. It does not apply to periods fixed by statute.
• Section 149. The court may at any stage allow a party to make up a deficiency of court-fee, and the document then has effect as if the fee had been paid at first.
• Section 151. Nothing in the Code limits the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.

The inherent power is not conferred by section 151; the section only saves it. It is used where the Code is silent, and cannot be used to override an express provision or to do what the Code prohibits. In Manohar Lal Chopra v. Seth Hiralal, 1961 INSC 312, AIR 1962 SC 527, the Court held that the Code is not exhaustive, and that a court may grant a temporary injunction under section 151 in a case not covered by Order XXXIX, but must not exercise inherent power in conflict with what the Code expressly provides. In Padam Sen v. State of Uttar Pradesh, 1960 INSC 167, AIR 1961 SC 218, the Court described the inherent powers as complementary to the powers expressly conferred. In K.K. Velusamy v. N. Palanisamy, 2011 INSC 243, (2011) 11 SCC 275, section 151 was held to allow a court to reopen evidence or recall a witness where the Code has no specific provision, provided the power is used sparingly and not to fill gaps caused by a party's negligence.

How this is examined

“Caveat” (January 2026) and “Revision” (February 2025) are six-mark notes: use sections 5 and 3. “Distinguish between reference and review” (August 2024) is answered from section 4 after a paragraph each on sections 1 and 2. A ten-mark question on inherent powers uses section 7 with Manohar Lal Chopra and Padam Sen. A problem asking whether a party can seek review because a later Supreme Court judgment has changed the law is answered “no”, from the Explanation to Order XLVII rule 1.