Code of Civil Procedure, 1908 | Part VIII

Section 113 CPC - Reference to High Court

Section 113 of the Code of Civil Procedure, 1908 (CPC) enables a court to refer a legal question to the High Court for its opinion in prescribed circumstances. It also requires a reference where specified questions concerning the validity of legislation arise.

Section 113 CPC: Reference to High Court

The provision reads as follows:

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 involves 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 by 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 therefor, 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.

Official source: Code of Civil Procedure, 1908 - India Code (PDF).

Meaning and scope of Section 113

A reference is a procedure by which a court states relevant facts, identifies a legal issue and seeks a decision or opinion from the High Court. It is not an ordinary appeal initiated merely because a party disagrees with a decision. The statutory power is governed by the conditions in Order XLVI (Order 46) CPC.

Discretionary reference

Under Order XLVI Rule 1, a court may make a reference when a question of law, or usage having the force of law, raises reasonable doubt in the specified proceedings: a suit or appeal where the decree is not subject to appeal, or execution of such a decree. The court may act on its own motion or on a party's application. It must state the facts, the doubtful point and its own opinion.

Mandatory reference under the proviso

The proviso to Section 113 requires the court to refer a case when all the following conditions exist:

A pending case raises a question about the validity of an Act, Ordinance, Regulation or a provision within one of them.
Deciding that question is necessary to dispose of the case.
The court considers the legislation or provision invalid or inoperative.
The jurisdictional High Court or the Supreme Court has not already declared it invalid or inoperative.

In that situation the court must set out its opinion and reasons and refer the question to the High Court. The reference does not itself amount to a final declaration of invalidity.

Order XLVI CPC: Procedure for reference

Order XLVI of the First Schedule supplies the procedural rules for references to the High Court.

Rule 1 - Reference of question to High Court

Permits a reference of a doubtful question of law or legally binding usage in the specified non-appealable proceedings, supported by a statement of facts and the referring court's opinion.

Rule 2 - Proceedings pending the reference

The referring court may stay proceedings or continue and make a decree or order contingent on the High Court's decision. However, the decree or order cannot be executed until the High Court's judgment on the reference is received.

Rule 3 - High Court decision

The High Court decides the referred point after hearing parties who appear and wish to be heard. Its judgment is transmitted to the referring court, which must dispose of the case in conformity with that decision.

Rule 4 - Costs

Costs resulting from the reference, if any, form part of the costs of the case.

Rule 4A - References under the Section 113 proviso

Rules 2, 3 and 4 also apply to mandatory references made under the proviso to Section 113.

Rule 5 - Powers of the High Court

The High Court may return a referred case for amendment and may alter, cancel or set aside a decree or order made by the referring court in the underlying case, as the rule permits.

Rules 6 and 7 - Small Cause Court jurisdiction

Rule 6 addresses references concerning whether a suit is cognizable by a Court of Small Causes. Rule 7 addresses submission by a District Court of proceedings for revision where a mistake concerning Small Cause Court jurisdiction is involved.

Read the official CPC text, including Order XLVI.

Reference, review and revision: key differences

Reference (Section 113): A court submits a specified legal question to the High Court under the statutory conditions. Review (Section 114 and Order XLVII): An eligible aggrieved person asks the court that made the decision to reconsider it on legally permitted grounds. Revision (Section 115): The High Court exercises limited supervisory jurisdiction over certain decisions of subordinate courts, subject to statutory restrictions. These procedures are distinct and are not interchangeable.

Frequently asked questions

Can a party directly refer a case to the High Court under Section 113?

No. A party may request a reference where Order XLVI Rule 1 permits, but the reference is made by the court, not directly by the party.

Is every reference under Section 113 compulsory?

No. References under the main provision are discretionary within prescribed limits. A reference is compulsory when the specific requirements of the proviso are satisfied.

Can the lower court continue proceedings during a reference?

Under Order XLVI Rule 2, it may stay or continue proceedings, but execution of the relevant decree or order must await receipt of the High Court's judgment.

Does Section 113 replace an appeal?

No. It is a separate mechanism for obtaining the High Court's determination on a legal question in circumstances defined by law.

Legal note: This is general information on the central CPC framework. State amendments, High Court rules and the facts of a particular case may affect the applicable procedure. Consult the current statutory text and relevant court rules before relying on it in litigation.