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civil_laws:review_72817102019

Review (Section 114 and Order XLVII)

Meaning: Review means re-examination or reconsideration of the case by the same judge. It is a judicial re-examination of the case by the same Court and by the same Judge. In it, a Judge, who has disposed of the matter, reviews his earlier order in certain circumstances. Section 114 and Order XLVII: The provisions relating to review are provided in S. 114 (substantive right) and Order XLVII (procedure). The general rule is that once the judgment is signed and pronounced or an order is made by the Court, it has no jurisdiction to alter it. Review is an exception to this general rule. Section 114: Review: Subject as aforesaid, any person considering himself aggrieved

  1. by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred;
  2. by a decree or order from which no appeal is allowed by this Code, or
  3. 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.

Who may apply to Review:Any person aggrieved by a decree or order may apply for a review of Judgment where no appeal is allowed or where an appeal is allowed but no appeal has been filed against such decree or order or by a decision on a reference from a small cause. An 'aggrieved person'. means a person who has suffered a legal grievance or against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused in something or wrongfully affected his title to something.

A person who is not a party to the decree or order cannot apply for review since on general principle of B.W, such decree or order is not binding on him and therefore he cannot be said to be an aggrieved person within the meaning of section 114 and order 47 Rule (1).

A party who has a right to appeal but does not file an appeal, may apply for a review of judgment, even if notwithstanding the pendency of an appeal by some other party, excepts?

  1. Where the ground of such appeal is common to the applicant and the appellant, or
  2. When, being respondent, he can present to the Appellate Court the case on which he applies for the review.

Grounds of Review: Order XLVII, Rule (1) provides the following grounds:

  1. Discovery of new and important matter or evidence, which after the exercise of due diligence, was not within his (aggrieved person's) knowledge or could not be produced by him (aggrieved person) at the time when the decree was passed or order made; or
  2. on account of some mistake or error appear on the face of the record; or
  3. for any other sufficient reason.

Explanation to section 114 specifically provides that “the fact that the decision on a question of law or which the judgment of the Court is based has been reserved or modified by the subsequent decision or a superior court in any other case, shall not be a ground for review of such judgment”. Procedure: Where the Court is of the opinion that there is not sufficient ground for a review, it shall reject the application otherwise it shall grant the same but no such application shall be grantee 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. Where more than one Judge hears a review application and the Court is equally divided the application shall be rejected.

Appeal Against Order on application U/s 114: An order of the Court rejecting the application shall no be appealable, but an order granting the 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. Bar of Certain Application: No application to review an order made on an application for a review or decree or order passed or made on a review shall be entertained.

What is the scope of review under Section 114 read with Order XLVII of CPC.

Haridas Das v. Smt. Usha Rani Banik, 2006 (3) SCALE 287

  • In order to appreciate the scope of a review, Section 114 of the CPC has to be read, but this section does not even adumbrate the ambit of interference expected of the Court since it merely states that it may make such order thereon as it thinks fit.
  • The parameters are prescribed in Order XLVII of the CPC and for the purposes of this lis, permit the defendant to press for a rehearing on account of some mistake or error apparent on the face of the records or for any other sufficient reason.
  • The former part of the rule deals with a situation attributable to the applicant, and the latter to a jural action which is manifestly incorrect or on which two conclusions are not possible. Neither of them postulate a rehearing of the dispute because a party had not highlighted all the aspects of the case or could perhaps have argued them more forcefully and/or cited binding precedents to the Court and thereby enjoyed a favourable verdict.
  • This is amply evident from the explanation in Rule 1 of the Order XLVII which states that 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.
  • Where the order in question is appealable the aggrieved party has adequate and efficacious remedy and the Court should exercise the power to review its order with the greatest circumspection.
  • A perusal of the Order XLVII, Rule 1 show that review of a judgment or an order could be sought : (a) from the discovery of new and important matters or evidence which after the exercise of due diligence was not within the knowledge of the applicant; (b) such important matter or evidence could not be produced by the applicant at the time when the decree was passed or order made; and © on account of some mistake or error apparent on the face of record or any other sufficient reason.
  • In Aribam Tuleshwar Sharma v. Aribam Pishak Sharma (AIR 1979 SC 1047) this Court held that there are definite limits to the exercise of power of review. In that case, an application under Order XLVII, Rule 1 read with Section 151 of the Code was filed which was allowed and the order passed by the judicial Commissioner was set aside and the writ petition was dismissed.
  • The court held that the power of review may be exercised on the discovery of new and important matter of evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made, it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a Court of appeal. A power of review is not to be confused with appellate power which may enable an Appellate Court to correct all manner of errors committed by the Subordinate Court

Created on 2020/10/19 23:13 by • Last modified on 2020/11/07 18:32 (external edit)