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Home Law Notes Civil Procedure Code REFERENCE (SECTION- 113 AND ORDER -46 ) CPC

REFERENCE (SECTION- 113 AND ORDER -46 ) CPC

Updated: May 20, 2020

Section 113 provides provisions relating to reference and empowers any court (subordinate court) to state case and refer the same for the opinion High Court. Such an opinion can be sought when the court itself feels some doubt about a question of law. The provisions are subject to such conditions and limitations as may be prescribed.

OBJECT- The object for reference is to enable the subordinate courts to obtain in non- appealable cases the opinion of the High court on a question of law and thereby avoid the commission of an error that could not be remedied later on.

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CONDITIONS FOR APPLICATION (order 46 rule1) :

The following conditions must be fulfilled before High court entertains a reference from a subordinate court, i.e

1-PENDENCY: there must be a pendency of suit or appeal in which the decree is not the subject to an appeal or a pending proceeding in the execution of such decree.

2-QUESTION OF LAW- a question of law or usage having the force of law must arise in the course if such suit, appeal or proceeding; and

3- DOUBT IN MIND OF COURT– the court trying the suit, appeal, or executing the decree must entertain a reasonable doubt on such a question.

QUESTION OF LAW- the subordinate court may be in doubt relating to the question of law, which may be-

1- Those which relates to the validity of any act, ordinance or regulation and the reference upon such question of law are obligatory upon the fulfilment of the following conditions;

a- It is necessary to decide such a question in order to dispose of the case;

b- The sub-ordinate court is of the view that the impugned act, ordinance or regulation is ultra vires, and

c- That there is no determination by the supreme court or by the High Court, to which such court is Subordinate that such Act, Ordinance or Regulation is Ultra-vires.

OTHER QUESTION- In case the reference is optional. PROCEDURE: WHO CAN MAKE REFERENCE:

A reference can be made by the court suo-motu or on the application of any party.

RULE 1- the referring court must formulate the question of law and give it opinion thereon.

RULE 2- the court may either stay the proceeding or may pass a decree or order, which cannot be executed until receipt of the judgment of the High Court on the reference.

RULE-3 the High Court after hearing the parties, if it so desires, shall decide the point of reference and the subordinate court shall dispose of the case in accordance with the said decision.

SECTION 113: REFERENCE TO HIGH COURT: Subject to such conditions and limitation 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 involves a question 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 an opinion that such Act, ordinance, regulation or provision is invalid or inoperative, but has not been so declared by the High court to which that court is subordinate or by 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.

POWER AND DUTY OF REFERENCING COURT: A reference can be made on a question of law arisen between the parties litigating, in a suit, appeal, or execution proceeding, during the pendency of such suit, appeal or proceeding, and the court is in doubt on such question of law.

POWER AND DUTY OF HIGH COURT-

The High Court entertains the consulting jurisdiction in cases of references and can neither make any order on merits nor can it make suggestions. In cases of references, the High Court may answer the question referred to it and send back the cases top the referring court for disposal in accordance with law. where a case is referred to the High court under Rule 1 of Order XLVI 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 reference he passed or made in the case out of which the reference arose, and make such order as it thinks fit.

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