Free Judiciary Notes · CPC Notes
CPC Sec. 113 & Order 46
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REFERENCE
Section 113 ORDER 46
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 involve 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 issubordinate or by the Supreme Court, the Court shall state a case setting out its opinion and the reasons therefore, 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.
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, enter tains reasonable doubt, the Court may, either of its own motion or on the application of any of the parties, ▪ draw up astatement 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 casein conformity with the decision of the High Court.