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Review Under Code of Civil Procedure An Overview

The dictionary meaning of review is to examine or to study again. So, the review of judgment is to examine or study again the facts and judgment of the case. Review of judgment is the substantive power of review by the court mentioned in Section 114 of CPC.

This section doesn't provide any limitations and conditions for review. The limitations and conditions are provided in Order 47 of the Civil Procedure Code. Order XLVII contains nine rules which impose some condition for the review. The power to review is conferred by law and inherent power to review vests in court only. A Government officer has no inherent power to review his/her orders. All decrees or orders cannot be reviewed. The right of review has been conferred by Section 114 and Order 47, Rule 1 of the Code.

Any person aggrieved:

  1. by a decree or order from which an appeal is allowed but from which no appeal has been preferred.
  2. by a decree or order from which no appeal is allowed.
  3. by a decision on a reference from a court a small causes, may apply for a review of judgment to the court which passed the decree or made the order on any of the following grounds:

    (1) discovery by the applicant 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.

    (2) on account of some mistake or error apparent on the face of the record.

    (3) for any other sufficient reason.
     
  1. Discovery of new and important matter or evidence: The party seeking review must show that he exercised greatest care in adducing all possible evidence and that the new evidence is such as is relevant and that if it had been given in the suit it might possibly have altered the judgment. It is not only the discovery of new and important evidence which entitles a party to apply for a review, but the discovery of any new and important matter which was not within the knowledge of the party when the decree was passed or order made.

  2. Mistake or error apparent on the face of the record: It is not limited to a mistake of fact. It may be of law. Failure to consider a ruling is not such an error. It should be an error which can be seen by a mere perusal of the record without reference to any other matter.
     
  3. Any other sufficient reason:
    These words have been interpreted by their Lordships of the Judicial Committee to mean a reason sufficient on grounds at least analogous to those specified in (1) and (2). It might be added that a review application should be filled before the appeal is lodged. An appeal may be filed after an application for review, but once the appeal is heard, the review cannot proceed. On the other hand, if the application for review is granted and a new decree is passed, the appeal cannot be heard and it must be dismissed for the decree appealed from is superseded by a new decree.

To whom application for review may be made:

  1. Where a decree is passed by a High Court Judge, the application for review of the judgment may be made to that Judge or to his successor-in-office, on any of the grounds on which review application can be made.
     
  2. Where a decree is passed by a Judge other than a High Court Judge, the application for review may be made to the Judge, who delivered the judgment or to this successor-in-office provided the review is sought on the ground of:
    (i) discovery of new and important matter or evidence.
    (ii) some clerical or arithmetical mistake or error apparent on the face of the decree.

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. 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.

Distinction between a Reference and a Review

  1. The power of revision is exercised by the court superior to the court which decided the case but the power of review is exercised by the very court which passed the decree or order.
  2. The power of revision is conferred on the High Court only, which is not so in the case of review. Any court can review its judgment.
     
  3. Revisional powers by the High Court can be exercised only in a case when there is no appeal to the High Court, but review can be made even when appeal lies to the High Court therein.
     
  4. The grounds on which the powers of revision and review can be exercised are different. The ground for revision relates to jurisdiction, viz., want of jurisdiction, failure to exercise a jurisdiction, or illegal or irregular exercise of jurisdiction, while the ground of review may be
    (a) the discovery of new and important matter or evidence.
    (b) some apparent mistake or error on the face of the record.
    (c) any other sufficient reason.
     
  5. In revision, the High Court can of its own accord, send for the case but for review an application has to be made by the aggrieved party.
     
  6. No appeal lies from an order made in the exercise of revisional jurisdiction, but the order granting review is appealable.


Distinction between Appeal and Reference

  1. A right of appeal is a right conferred on the suitor, while the power of reference is vested in the court.
  2. Reference is always made to the High Court. While an appeal is preferred to a superior court which need not necessarily be High Court.
  3. The grounds of appeal are wider than the grounds of reference.
  4. Reference is made in a pending suit, appeal or execution proceeding in order to enable the court to arrive at a correct conclusion, while an appeal is preferred after the decree is passed or an appealable order is made.

Distinction between Appeal and Revision

  1. An appeal lies to a superior court, which may not necessarily be a High Court; but an application for revision lies only the High Court.
     
  2. An appeal lies only from appealable orders and decree, but an application for revision can be made only when the relief by way of appeal to the High Court is not available.
     
  3. A right of appeal is a substantive right given by statute. There is no right of revision. It is only a privilege. A party may move the High Court to invoke its revisional jurisdiction or the High Court may of its own motion exercise revisional jurisdiction, but the power is discretionary.
     
  4. An appeal abates, if the legal representatives of a deceased party are not brought on the record within the time allowed by law. A revision does not abate in case of the death of a party even if the legal representatives are not brought on the record. The High Court has a right to bring the proper parties before the Court at any time.
     
  5. The grounds of appeal and revision are different. An application in revision can lie only on the ground of jurisdiction, and the High Court in exercise of its revisional jurisdiction is not a court of appeal on a question of law or fact. In an appeal the court has the power to decide both questions of fact and law.
     
  6. Section 115 does not require that there should be an application in revision. The High Court can move of its own accord in exercising revisional jurisdiction. In case of appeal there must be a memorandum of appeal filed before the same can be considered by the appellate court.
     
  7. An essential distinction between an appeal and a revision is based on differences implicit in the said two expressions. An appeal is continuation of the proceedings. In effect, the entire proceedings are before the appellate authority and it has power to review the evidence subject to the statutory limitations prescribed. But in the case of a revision, whatever powers the revisional authority may or may not have, it has not the power to review the evidence unless the statute expressly confers on it that power, also mentioned in case of State of Kerala v. K.M. Charia Abdulla and Co. (1).

Distinction between Second Appeal and Revision

  1. A second appeal lies to the High Court from every decree passed in appeal by a subordinate court only if the High Court is satisfied that the case involves a substantial question of law. The grounds of revision are, however, different. They relate to jurisdiction.
     
  2. The revisional powers of the High Court can be invoked in cases which no appeal or second appeal lies to the High Court. This is not so in second appeal.
     
  3. The Court will not in its revisional jurisdiction enter into merits of the case however erroneous the decision of the lower court is on an issue of law or of fact but will interfere only to see that requirements of law have been properly obeyed by the court whose order is the subject of revision. Although no second appeal can be preferred on a question of fact yet when such an appeal is already before the High Court, it may determine issues of fact where such issues have not been determined provided that the evidence on the record is sufficient for such determination.
     
  4. In revisional matters the High Court may decline to interfere if it is satisfied that substantial justice has been done. But on questions of law in second appeal, no discretion vests in the High Court and it has no right to decide merely on equitable grounds.

Distinction between Reference and Revision

  1. In reference the case is referred to the High Court by a court subordinate to it. On the other hand, the party aggrieved moves the High Court in revision for the exercise of its revisional jurisdiction or the High Court may suo -motu send for the case and examine the record.
     
  2. The ground for reference is the entertainment of some reasonable doubt by the Court trying the suit, appeal or executing the decree with regard to a question of law or usage having the force of law. The ground for revision, on the other hand, relates to jurisdiction, viz., want of jurisdiction, failure to exercise a jurisdiction or illegal or irregular exercise of jurisdiction.

Distinction between Reference and Review

  1. In reference the subordinate court refers the case to the High Court while in review an application is made by the aggrieved party.
     
  2. The High Court alone can decide matters on reference while an application for review is made to the court which passed the decree or made the order.
     
  3. Reference is made during the pendency of the suit, appeal or execution proceedings, while application for review is made to the court after it has passed the decree or made the order.
     
  4. The grounds of reference and review are different. Reference is made by the court trying the suit, appeal or executing the decree when it entertains reasonable doubt with regard to any question of law or usage having the force of law. The grounds of review may be the discovery of new and important matter or evidence, some apparent mistake or error on the face of the record or any other sufficient reason.

Distinction between Review and Appeal

  1. An application for review lies to the same court while an appeal lies to a higher court.
  2. The main object of granting a review of judgment is reconsideration of the same matter by the same Judge. While an appeal is heard by another Judge.
  3. The grounds of review are narrower than the grounds of appeal.
  4. There is no second review, but there is second appeal on a substantial question of law.

Conclusion:
The power of reviewing of its own judgment is conferred on the court. Section 114 and Order 47 of Civil procedure Code provides the right to review the judgment. Section 114 provides only right to review the judgment and order 47 of CPC provides limitations and conditions. 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.

References:
  1. Dinshaw F. Mulla, the Key to Indian Practice: A Summary of the Code of Civl Procedure, 1908, (11th 2015).
  2. C. K. Takwani, Civil Procedure, (8th ed. 2018).
  3. M P Jain, Indian Constitutional law, Lexis Nexis Butterworths Wadhwa.
  4. J. N. Pandey, The Constitutional law of India, Central Law Agency.
End Notes:
  1. AIR. 1965 S.C. 1585.

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