Code of Civil Procedure, 1908 · Order 46

Order XLVI Rule 1 CPC - Reference of Question to High Court

Order XLVI Rule 1 of the Code of Civil Procedure, 1908 (CPC) permits a civil court, in specified circumstances, to seek a High Court's decision on a doubtful question of law or a usage having the force of law. The rule operates with Section 113 CPC.

Text of Order XLVI Rule 1 CPC

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.

Meaning and purpose of the provision

A reference is a statutory procedure by which a court states a legal question and its opinion for consideration by the High Court. It is distinct from an appeal or revision: the referring court seeks an authoritative decision on the identified point rather than asking the High Court to rehear the entire dispute.

The expression usage having the force of law concerns a legally binding usage, not merely a common practice. Reasonable doubt means a genuine uncertainty entertained by the court about the relevant legal question; disagreement by a party alone is insufficient.

Conditions for a reference under Rule 1

  1. The question must arise before or during the hearing of a suit or appeal in which the decree is not subject to appeal, or during execution of such a decree.
  2. The question must concern law or a usage having the force of law.
  3. The court hearing the matter or executing the decree must itself entertain reasonable doubt about the point.
  4. The court may act on its own motion or upon a party's application, but the decision to refer under Rule 1 is discretionary.
  5. The reference must set out the case facts, the doubtful point and the referring court's own opinion.

Section 113 CPC and mandatory references

Section 113, titled Reference to High Court, empowers a court, subject to prescribed conditions and limitations, to state a case for the High Court's opinion. Its proviso requires a reference when the pending case necessarily involves the validity of an Act, Ordinance, Regulation or provision; the court considers it invalid or inoperative; and neither the jurisdictional High Court nor the Supreme Court has already declared it so.

This mandatory proviso is different from the discretionary reference under Order XLVI Rule 1. Under Order XLVI Rule 4A, Rules 2, 3 and 4 also apply to references made under the proviso to Section 113.

What happens after a reference?

Rule 2: The referring court may stay proceedings or continue and pass a decree or order contingent on the High Court's decision. Such decree or order cannot be executed until the High Court's judgment on the reference is received.

Rule 3: The High Court decides the referred point, after hearing parties who appear and wish to be heard, and transmits its judgment to the referring court, which must dispose of the case in conformity with that decision.

Rules 4 and 5: Costs of the reference are costs in the case. The High Court may return the case for amendment and exercise the powers specified in Rule 5 regarding an order or decree made by the referring court.

Illustrative example

Suppose a civil court is deciding a suit whose decree is not appealable, and an unsettled question of statutory interpretation is essential to the decision. If the court itself has reasonable doubt, it may record the relevant facts, formulate the precise question and its opinion, and refer the point to the High Court under Order XLVI Rule 1.

Practical point: A party may request a reference, but cannot demand one as of right under Rule 1. The statutory requirements and the court's own reasonable doubt remain essential. State amendments and applicable High Court rules should also be checked.

Frequently asked questions

Is every legal question referable to the High Court?

No. Rule 1 is confined to its specified proceedings and requires the court's reasonable doubt on a question of law or legally binding usage.

Can the court make a reference without an application?

Yes. The rule expressly permits the court to act on its own motion.

Is a reference the same as an appeal?

No. A reference seeks the High Court's decision on a stated legal point, whereas an appeal challenges a decision through an appellate remedy.

Official legal sources

Updated: 13 October 2026. This article provides general legal information, not case-specific legal advice.