Section 17

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[Appeals to Federal Court]. Rep. by the Federal Court, 1941 (21 of 1941), s. 2 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 of 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 or order shall be executed in any case in which such reference is made until the receipt of a copy of the judgment of the High Court upon the reference. 3 . Judgment 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 judgment, 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 (is 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. 155 (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 proceeding 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. ORDER XLVII- REVIEW 1 . Application for review of judgment— (1) Any person considering himself aggrieved— (a) by a decree or order from which an appeal is allowed, but from which no appeal has 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, and who, from the discovery 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, or on account of some mistake or error apparent on the face of the record of for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order. (2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review. [441] [Explanation—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.] 2 . [To whom applications for review may be made.] Rep. by the Code of Civil Procedure (Amendment) Act, 1956 (66 of 1956), s. 14. 3 . Form of applications for review— The provisions as to the form of preferring appeals shall apply mutatis mutandis, to applications for review. 4 . Application where rejected— (1) Where it appear to the Court that there is not sufficient ground for a review, it shall reject the application. (2) Application where granted—Where the Court is of opinion that the application for review should be granted, it shall grant the same: Provided that— (a) no such application shall be granted 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; and (b) no such application shall be granted on the ground of discovery of new matter or evidence which the applicant alleges was not within his knowledge, or could not be adduced by him when the decree or order was passed or made, without strict proof of such allegation. 156 5 . Application for review in Court consisting of two or more judges— Where the Judge or Judges, or any one of the judges, who passed the decree or made the order a review of which is applied for, continues or continued attached to the Court at the time when the application for a review is presented, and is not or not precluded by absence or other cause for a period of six months next after the application from considering the decree or order to which the application refers, such Judge or Judges or any of them shall hear the application, and no other Judge or Judges of the Court shall hear the same. 6 . Application where rejected— (1) Where the application for a review is heard by more than one judge and the Court is equally divided, the application shall be rejected. (2) Where there is a majority, the decision shall be according to the opinion of the majority. 7 . Order of rejection not appealable. Objections to order granting application— [442][(1) An order of the Court rejecting the application shall not be appealable; but an order granting an 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.] (2) Where the application has been rejected in consequence of the failure of the applicant to appear, he my apply for an order to have the rejected application restored to the file, and, where it is proved to the satisfaction of the Court that he was prevented by any sufficient cause from appearing when such application was called on for hearing, the Court shall order it to be restored to the file upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for hearing the same. (3) No order shall be made under sub-rule (2) unless notice of the application has been served on the opposite party. 8 . Registry of application granted, and order for re-hearing— When an application for review is granted, a note thereof shall be made in the register and the Court may at once re-hear the case or make such order in regard to the re-hearing as it thinks fit. 9 . Bar of certain application— No application to review an order made on an application for a review or a decree or order passed or made on a review shall be entertained. ORDER XLVIII-MISCELLANEOUS 1 . Process to be served at expense of party issuing— (1) Every process issued under this Code shall be served at the expense of the party on whose behalf it is issued, unless the Court otherwise directs. (2) Costs of service—The court-fee chargeable for such service shall be paid within a time to be fixed before the process is issued. 2 . Orders and notices how served— All orders, notices and other documents required by this Code to be given to or served on any person shall be served in the manner provided for the service of summons. 3 . Use of forms in appendices.— The forms given in the appendices, with such variation as the circumstances or each case may require, shall be used for the purpose therein mentioned. ORDER XLIX-CHARTERED HIGH COURTS 1 . Who may serve processes of High Court— Notice to produce documents, summonses to witnesses, and every other judicial process, issued in the exercise of the original civil jurisdiction of the High Court, and of its matrimonial, testamentary and intestate jurisdictions, except summonses to defendants, writs of execution and notices to respondents may be served by the attorneys in the suits, or by persons employed by them, or by such other persons as the High Court, by any rule or order, directs. 2 . Saving in respect of Chartered High Courts— Nothing in this Schedule shall be deemed to limit or otherwise affect any rules in force at the commencement of this Code for the the taking of evidence or the recording of judgments and orders by a Chartered High Court. 3 . Application of rules— The following rules shall not apply to any Chartered High Court in the exercise of its ordinary or extraordinary original civil jurisdiction, namely:— (1) rule 10 and rule 11, clauses (b) and (c), of Order VII; (2) rule 3 of order X; 157 (3) rule 2 of Order XVI; (4) rules 5, 6, 8, 9, 10, 11, 13, 14, 15 and 16 (so far as relates to the manner of taking evidence) of Order XVIII; (5) rules 1 to 8 of Order XX; and (6) rule 7 of Order XXXIII (so far as relates to the making of a memorandum); and rule 35 of Order XLI shall not apply to any such High Court in the exercise of its appellate jurisdiction. Order L PROVINCIAL SMALL CAUSE COURTS 1 . Provincial Small Cause Courts— The provisions hereinafter specified shall not extend to Courts constituted under the Provincial Small Cause Courts Act, 1887 (9 of 1887) or under the Berar Small Cause Courts Law, 1905 or to Courts exercising the jurisdiction of a Court of Small Causes under the said Act or Law or to Courts in any part of India to which the said Act does not extend exercising a corresponding jurisdiction that is to say— (a) so much of this Schedule as relates to— (i) suits excepted from the cognizance of a Court of Small Causes or the execution of decrees in such suits; (ii) the execution of decrees against immovable property or the interest of a partner in partnership property; (iii) the settlement of issues; and (b) the following rules and orders:— Order II, rule 1 (frame of suit); Order X, rule 3 (record of examination of parties); Order XV, except so much of rule 4 as provides for the pronouncement at once of judgment; Order XVIII, rules 5 to 12 (evidence); Orders XLI to XLV (appeals); Order XLVII, rules 2, 3, 5, 6, 7 (review); Order LI. STATE AMENDMENTS Uttar Pradesh.— In its application to the State of Uttar Pradesh in rule 1, in clause (b) after the words "provides for pronouncement at once of judgment" add "and rule 5". [U.P. Act 30 of 1974]. ORDER LI- PRESIDENCY SMALL CAUSE COURTS 1 . Presidency Small Cause Courts— Save as provided in rules 22 and 23 of Order V, rules 4 and 7 of Order XXI, and rule 4 of Order XXVI, and by the Presidency Small Cause Courts Act, 1882 (15 of 1882), this Schedule shall not extend to any suit or proceeding in any Court of Small Causes established in the towns of Calcutta, Madras and Bombay. APPENDIX A PLEADINGS (1) TITLES OF SUITS In the Court of A.B. (add description and residence) Plaintiff 158 against C.D. (add descritption and residence) Defendant (2) DESCRIPTION OF PARTIES IN PARTICULAR CASES [The Union of Inida or the State of , as the case may be.] The Advocate General of The Collector of The State of The A.B. Company, Limited having its registered office at A.B., a public officer of the C.D. Company. A.B. (add description and residence), on behalf of himself and all other creditors of C.D., late of (add description and residence). A.B. (add description and residence), on behalf of himself and all other holders of debentures issued by the Company Limited The Official Receiver A.B., a minor (add description and residence), by C.D. [or by the Court of Wards], his next friend. A.B. (add description and residence), a person of unsound mind [or of weak mind], by C.D. his next friend A.B., a firm carrying on business in partnership at A.B. (add description and residence), by his constituted attorney C.D. (add description and residence) A.B. (add description and residence), shebait of Thakur A.B. (add description and residence), executor of C.D., deceased. A.B. (add description and residence), heir of C.D., deceased. (3) PLAINTS No. 1 Money Lent (Title) A.B., the above-named plaintiff, states as follows :