Code of Civil Procedure, 1908 / Order XLVI / Reference

Order XLVI Rule 2 CPC - Court May Pass Decree Contingent Upon High Court Decision

Order 46 Rule 2 of the Code of Civil Procedure, 1908 explains what a referring court may do while awaiting the High Court's answer to a question referred under the CPC. It allows proceedings to continue or be stayed, but restricts execution until the High Court's judgment on the reference is received.

Text of Order XLVI Rule 2 CPC

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.

Meaning and legal effect of Rule 2

When a court has referred a question of law to the High Court, the reference does not automatically require all proceedings to stop. Rule 2 gives the referring court a choice: it may stay the matter, or it may continue to hear and deal with the case while the reference is pending.

The court may also pronounce a decree or make an order that is contingent upon the High Court's decision. In this context, a contingent decree or order is one whose operative outcome depends on how the High Court answers the referred question.

Important restriction: The proviso to Rule 2 prevents execution of a decree or order in a case where the reference has been made until a copy of the High Court's judgment on that reference has been received. The ability to continue proceedings must not be confused with permission to execute the resulting decree or order.

Options available to the referring court

  1. Stay proceedings: The court may defer further steps while the High Court considers the reference.
  2. Continue proceedings: The court may carry on with the suit, appeal or relevant proceeding notwithstanding the pending reference.
  3. Pass a conditional decree or order: The court may make its decision subject to the High Court's determination of the legal point.
  4. Withhold execution: Any decree or order in the referred case cannot be executed until receipt of the High Court's judgment on the reference.

Relationship with Section 113 and Order XLVI Rule 1

Section 113 CPC provides the statutory basis for references to the High Court, subject to prescribed conditions and limitations. Its proviso addresses certain questions concerning the validity of an Act, Ordinance, Regulation or provision, where the required conditions are satisfied.

Order XLVI Rule 1 sets out the ordinary procedure for referring a doubtful question of law or usage having the force of law in specified non-appealable matters. Rule 2 then governs the referring court's powers and the restriction on execution while that reference awaits a decision.

Order XLVI Rule 4A extends Rules 2, 3 and 4 to references under the proviso to Section 113. Under Rule 3, the High Court's judgment is transmitted to the referring court, which must proceed in conformity with the decision.

Illustrative example

A civil court refers a disputed legal interpretation to the High Court in a case qualifying for reference. Rather than suspending every procedural step, the court continues the hearing and passes a decree expressly dependent on the High Court's answer. Even though the decree has been passed, its execution must wait until the referring court receives a copy of the High Court's judgment on the reference.

This illustration explains the procedural distinction; the validity of a reference and the effect of any decree depend on the applicable facts, statutory requirements and court orders.

Frequently asked questions

Does a High Court reference automatically stay a civil case?

No. Order XLVI Rule 2 permits the court either to stay the proceedings or to continue despite the reference.

Can the referring court pass a decree before the High Court decides?

Yes. It may pass a decree or order contingent upon the High Court's decision on the referred point.

Can that decree or order be executed immediately?

No. Rule 2 bars execution in the case until receipt of a copy of the High Court's judgment on the reference.

What happens after the High Court decides the question?

Under Order XLVI Rule 3, the High Court transmits its judgment to the referring court, which proceeds to dispose of the case in conformity with that decision.

Official legal source

Read the Code of Civil Procedure, 1908 (India Code, official PDF), including Section 113 and Order XLVI Rules 1 to 5. State amendments and applicable High Court rules should also be checked for a particular jurisdiction.

Legal information for general reference; not a substitute for advice on a particular proceeding.