Section 113 of the Civil Procedure Code gives power to subordinate Court to state a case and refer the same for the opinion of the High Court, and the High Court may make such order thereon as thinks fit. There are some conditions which are to be satisfied for reference. According to Order 46 Rule 1 of the Civil Procedure Code, a High court cannot entertain a reference from the subordinate Court unless those conditions are satisfied.
Reference to High Court - (Section 113 of CPC)
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 involve; 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 b; 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 therefore, 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.
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 all 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 order shall be executed in any case in which such reference is made until the receipt of a copy of the judgement of the High Court upon the reference.
3. Judgement 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 judgement, 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. Costs 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.
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.
1) Difference Between Summary Suit and Ordinary Suit (Regular Suit)
2) Difference between Judgement and Decree
3) Difference between Res Judicata and Res Subjudice
4) What is Stay of suit or Res-Subjudice
5) What are the similarities between Order and Decree?
Provision of reference in Civil Procedure Code -
Reference to High Court - (Section 113 of CPC)
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 involve; 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 b; 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 therefore, 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.
Order XLVI Reference
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 all 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 order shall be executed in any case in which such reference is made until the receipt of a copy of the judgement of the High Court upon the reference.
3. Judgement 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 judgement, 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. Costs 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.
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.
See also...
1) Difference Between Summary Suit and Ordinary Suit (Regular Suit)
2) Difference between Judgement and Decree
3) Difference between Res Judicata and Res Subjudice
4) What is Stay of suit or Res-Subjudice
5) What are the similarities between Order and Decree?
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