Code of Civil Procedure, 1908 | Order 46 - Reference

Order XLVI Rule 5 CPC: High Court Power to Alter or Set Aside Decrees

Order XLVI Rule 5 empowers the High Court, when deciding a civil reference, to return the case for amendment and to alter, cancel or set aside a decree or order made by the referring court.

What does Order XLVI Rule 5 provide?

The rule applies where a case is referred to the High Court under Order XLVI Rule 1 or under the proviso to Section 113 of the Code of Civil Procedure, 1908. The High Court may return the case for amendment, alter, cancel or set aside any decree or order made by the referring court in the case giving rise to the reference, and make such order as it thinks fit.

Essential point: This is a power exercised in connection with a valid reference. It is not an independent, unrestricted right for a party to appeal against every decree or order.

Meaning of the important legal terms

Reference: A procedure through which a subordinate court states a legal question and seeks the High Court's opinion in the circumstances prescribed by Section 113 and Order XLVI.
Decree: Under Section 2(2) CPC, the formal expression of an adjudication conclusively determining the rights of parties concerning all or any matters in controversy in a suit, subject to statutory inclusions and exclusions.
Order: Under Section 2(14) CPC, the formal expression of a decision of a civil court which is not a decree.
Return for amendment: Sending the referred case back so the reference or case materials can be corrected or supplemented as required.
Alter, cancel or set aside: Powers to modify or remove an existing decree or order of the referring court, within the scope of Rule 5.

When can the High Court exercise these powers?

A court makes a reference under Order XLVI Rule 1, typically concerning a doubtful question of law or a usage having the force of law in the circumstances specified by that rule.
Alternatively, a reference is made under the proviso to Section 113 where the statutory conditions concerning the validity of legislation are satisfied.
The High Court considers the reference and may make the consequential directions authorized by Rule 5, including changes to a decree or order made in the underlying case.

How Rule 5 works with Section 113 and other rules

Section 113 CPC - Reference to High Court

Section 113 authorizes a court, subject to prescribed conditions and limitations, to state a case for the High Court's opinion. Its proviso requires a reference in specified cases raising an unresolved question about the validity of an Act, Ordinance, Regulation or provision necessary to decide the pending case.

Order XLVI Rules 1 to 4A

Rule 2 allows the referring court to stay or continue proceedings, but prevents execution of a decree or order until it receives the High Court's judgment on the reference. Rule 3 governs the High Court's decision and transmission of its judgment. Rule 4 addresses costs, while Rule 4A extends Rules 2, 3 and 4 to references under the proviso to Section 113.

Practical illustration

Suppose a subordinate court refers a legal question to the High Court and has already made an order in the underlying case. If the High Court's consideration of the reference shows that the order requires correction, Rule 5 permits the High Court to alter or set it aside and issue an appropriate consequential order. The outcome depends on the facts, the legal question referred and the applicable procedural requirements.

Frequently asked questions

Can the High Court set aside a decree under Order XLVI Rule 5?

Yes. When a case is properly referred under Rule 1 or the proviso to Section 113, Rule 5 expressly empowers the High Court to alter, cancel or set aside a decree or order made by the referring court in that case.

Does Rule 5 allow a litigant to file a direct appeal?

No. Rule 5 concerns the High Court's powers on a reference; appeals, reviews and revisions are governed by their respective statutory provisions.

Can the High Court return a reference for amendment?

Yes. Rule 5 expressly permits the High Court to return the case for amendment.

Official legal source

Read the Code of Civil Procedure, 1908 (India Code, official PDF), especially Section 113 and the First Schedule, Order XLVI. State amendments and applicable High Court rules should also be checked where relevant.

This article provides general legal information and does not replace advice based on the facts of a particular case.