Reference to High Court (Section 113; Order XLVI)

Section 113 of the Code of Civil Procedure, 1908, read with Order XLVI, allows a subordinate court that entertains a reasonable doubt on a question of law to draw up a statement of facts and refer the point for the opinion of the High Court. The mechanism is consultative — neither original nor appellate — and lives at the heart of the Code of Civil Procedure's closing chapter on superintendence remedies, sitting alongside review under Section 114 and revision under Section 115.

The reference is the trial-bench-driven member of that trio. Review is invoked by a party against the same court's own decree; revision is invoked by a party in the High Court; reference alone is set in motion by the subordinate court itself, and is the only one of the three that can be made before a decree is even passed.

Statutory anchor

The substantive section is short. The conditions and limitations live in Order XLVI Rules 1 to 7. The proviso, inserted by the Amendment Act 24 of 1951, carves out a separate, mandatory channel for constitutional-validity references and operates independently of Order XLVI Rule 1.

Scheme — where reference fits in the appellate flow

The Code's flow is institution → trial → judgment and decree → first appeal → second appeal → execution. Reference is a parallel remedy that operates inside that flow, not after it. Three features fix its place:

1. Subordinate court speaks first. The party cannot move the High Court directly under Section 113. The reference is drawn up either suo motu by the trial court or appellate court, or on an application that the subordinate court accepts.
2. The decree must not be appealable. Order XLVI Rule 1 confines references to suits or appeals in which the decree is not subject to appeal. Where an appeal lies, the appeal is the in-built corrective; the High Court will not be troubled with a reference.
3. The High Court's role is consultative. Section 113 says the High Court may make "such order thereon as it thinks fit" — it does not sit in appeal. It interprets the question and remits the answer; the subordinate court then disposes of the case in conformity.

That tripod — subordinate court, non-appealable decree, consultative answer — distinguishes reference from first appeal under Section 96, from the discretionary corrective of revision under Section 115, and from the same-court reconsideration that review under Section 114 contemplates.

Ingredients of a Section 113 reference (general body)

Reading Section 113 with Order XLVI Rule 1, six ingredients govern a reference made under the general body of the section:

1. The proceeding is a suit, an appeal in a suit, or the execution of a decree passed in such a suit or appeal. A reference cannot be made in a probate proceeding, in a small-cause appeal not classed as a suit, or in any matter that is not a suit or appeal in a suit. Section 141 does not extend the reference power to other proceedings.
2. The decree is not subject to appeal. If an appeal lies — under Section 96, Section 100 (second appeal), or Order XLIII — the appellate channel is the prescribed corrective and reference is excluded.
3. A question of law or usage having the force of law has arisen. Pure questions of fact, or mixed questions whose answer turns on facts not yet found, are outside the rule. The point must already have arisen between the litigating parties on the pleadings.
4. The court entertains a reasonable doubt on the question. The doubt must be the referring court's own. A judge who has formed a clear view cannot make a reference merely because counsel asks for one, and a court bound by a binding ruling of its own High Court cannot doubt the ruling unless that ruling is open to question on Supreme Court authority.
5. The court is the court trying the suit, hearing the appeal, or executing the decree. The expression "court" in Order XLVI Rule 1 means a court of civil judicature; tribunals and persons designated persona designata have no power of reference.
6. A statement of the case is drawn up. The court must record the facts in dispute, formulate the point on which doubt is entertained, and forward its own opinion along with the reference. A bare letter asking the High Court for guidance is not a reference under Order XLVI Rule 1.

The reference under the general body is therefore discretionary — the word in Section 113 is "may". Even where every condition is satisfied, the subordinate court is not bound to refer. The discretion exists precisely so that references stay exceptional and the High Court is not flooded with first-instance doubts.

The mandatory proviso — references on constitutional validity

The proviso to Section 113 operates on a different footing. It applies where four conditions concur:

1. A case is pending before the subordinate court.
2. The case involves a question as to the validity of an Act, Ordinance or Regulation, or of a provision in any of them.
3. The determination of that question is necessary for the disposal of the case.
4. The subordinate court is of the opinion that the Act, Ordinance, Regulation or provision is invalid or inoperative, and the High Court to which it is subordinate, and the Supreme Court, have not yet so declared.

When all four are satisfied the proviso uses the word "shall" — the subordinate court must state a case, set out its opinion, and refer it for the opinion of the High Court. The proviso is mandatory; the discretion of the general body falls away.

The Explanation to Section 113 limits the meaning of "Regulation" to a Regulation of the Bengal, Bombay or Madras Code, or a Regulation as defined in the General Clauses Act, 1897, or in any State General Clauses Act. Andhra Pradesh and Tamil Nadu have added local Regulations to the Explanation by amendment.

The proviso has two further consequences. First, a subordinate court cannot itself strike down a statute as ultra vires; it must refer. Second, once the High Court has answered the constitutional question and remitted its opinion, nothing further survives on that question for the High Court to revisit.

Procedure — drawing up and disposing of a reference

Order XLVI Rules 2 to 5 prescribe the steps from the moment the subordinate court resolves to refer to the disposal of the case after the High Court answers.

1. Decree contingent on the answer (Rule 2). The subordinate court may either stay proceedings pending the High Court's answer, or proceed and pass a decree contingent on the answer to the question referred. Either way, no decree or order in such a case is to be executed until the High Court's judgment on the reference is received.
2. Disposal in conformity (Rule 3). The High Court hears the parties if they appear and desire to be heard, decides the point referred, and transmits a copy of its judgment under the Registrar's signature to the referring court. The referring court "shall" then dispose of the case in conformity with the High Court's decision.
3. Costs (Rule 4). The costs consequent on a reference are costs in the cause and abide the final result of the suit.
4. Proviso references (Rule 4A). Rule 4A, inserted alongside the 1951 proviso, applies the procedure of Rules 2, 3 and 4 to references made under the proviso to Section 113.
5. Power of alteration (Rule 5). Where a case is referred, the High Court may return it for amendment, and may alter, cancel or set aside any decree or order which the referring court has passed in the case out of which the reference arose, and make such order as it thinks fit.

The High Court's powers on the reference are wide. Although its jurisdiction is consultative, it is not bound to confine itself to the question as framed. If a new aspect of the legal question emerges and the answer does not require fresh fact-finding outside the statement of the case, the High Court may answer the new aspect as well. It may equally refuse to answer, or quash a reference that does not satisfy Order XLVI Rule 1.

Small-cause references — Order XLVI Rules 6 and 7

Two specialised reference powers sit in Order XLVI for small-cause questions:

Rule 6 — pre-judgment reference. Where, before judgment, a court in which a suit has been instituted doubts whether the suit is cognizable by a Court of Small Causes or not, the court may submit the record to the High Court with a statement of its reasons. The High Court may direct the court either to proceed with the suit or to return the plaint for presentation to such other court as it declares competent.

Rule 7 — post-decree reference by District Court. Where it appears to a District Court that a subordinate court has, by erroneously holding a suit to be cognizable or not cognizable by a Court of Small Causes, failed to exercise jurisdiction vested in it, or exercised jurisdiction not vested in it, the District Court may, and on a party's requisition shall, submit the record to the High Court with a statement of its reasons. The High Court then makes such order in the case as it thinks fit, and may also pass such order on subsequent proceedings as appears just and proper.

Rules 6 and 7 are reference powers of a different texture from Rule 1: they are confined to questions of small-cause cognisability and do not require the predicate of a non-appealable decree. They work as procedural correctives where the wrong court was hearing the suit.

Leading authorities

The case law on Section 113 has accreted around four propositions: the consultative nature of the jurisdiction, the necessity test for the question referred, the bar on tribunal references, and the mandatory character of the proviso.

In Tika Ram v. Mahbeshwar Din, AIR 1959, the court explained the primary object of the reference power: to enable a subordinate court to obtain the opinion of the High Court on a question of law in non-appealable cases where it entertains reasonable doubt, and so to avoid an error that cannot be cured later. The same decision underlines that a reference cannot be made when the court has formed a clear opinion of its own; the doubt must be real.

In M.S. Oberoi v. Union of India, AIR 1970, the court held that the proviso is intended to enable questions as to the validity of an Act, Ordinance or Regulation to be decided speedily by the highest tribunal in the State. The proviso supplies the constitutional rationale for the reference channel: subordinate courts cannot strike down statutes, but neither should they apply statutes they regard as invalid without testing the view at the High Court.

In a 1999 ruling of the Supreme Court, the Court restated the three conditions of a proviso reference — necessity for disposal, subordinate court's view of ultra vires, no prior determination by the High Court or Supreme Court — and held the proviso to be mandatory. The same decision also held that once the High Court has answered the question referred, nothing further survives on it for the High Court to decide.

In State of Maharashtra v. Prashant Pritam Kumar Shegaonkar, AIR 2011, the Supreme Court held that a reference made by a District Judge to interpret a decision of the Supreme Court is not permissible. A reference under Section 113 lies on the validity of a statutory instrument, not on the meaning of a binding precedent — for that, the trial court must read the precedent and apply it.

In Delhi Financial Corporation v. Ram Pershad, AIR 1973, and Shyam Lal v. Sultan Singh, AIR 1977, the courts confirmed that the word "court" in Section 113 means a court of civil judicature. A tribunal, an authority under a special statute, or a persona designata cannot make a reference, even on a question of constitutional validity.

In Ranadeb v. Land Acquisition Judge, AIR 1971, the proviso was authoritatively read as mandatory — the subordinate court has no choice when the four conditions concur.

Distinguishing reference from review and revision

The three remedies of Part VIII of the CPC are constantly tested in MCQs through their differences. The chart below holds them apart on the points that recur in exams:

1. Who initiates. Reference is initiated by the subordinate court (Section 113). Review is initiated by the aggrieved party in the same court (Section 114; Order XLVII). Revision is initiated by an aggrieved party (or by the High Court suo motu) in the High Court (Section 115).
2. Forum. Reference travels upward to the High Court for opinion. Review is heard by the same court that passed the decree or order. Revision is heard by the High Court, never by the court below.
3. Trigger. Reference rests on the subordinate court's reasonable doubt on a question of law. Review rests on discovery of new evidence, mistake or error apparent on the face of the record, or any other sufficient reason. Revision rests on the subordinate court having exercised jurisdiction not vested in it, failed to exercise jurisdiction vested in it, or acted illegally or with material irregularity in the exercise of its jurisdiction.
4. Stage. Reference can be made before or after the decree, and even at the execution stage. Review lies after the decree or appealable order. Revision lies after a case has been decided, where no appeal lies.
5. Decree subject to appeal. Reference is barred where an appeal lies (Order XLVI Rule 1). Review is barred where an appeal has been preferred (Order XLVII Rule 1). Revision lies only where no appeal lies (Section 115).
6. Nature of the higher court's order. The High Court's order on a reference is consultative — it answers the question and remits it. On a review, the same court reverses, varies or affirms its own decision. On a revision, the High Court interferes only on the jurisdictional grounds in Section 115.

What a reference cannot do

The contours of Section 113 are tested as much by what falls outside the section as by what falls inside it. The case law records several recurring negatives:

1. No reference on appealable orders. An order returning a plaint for presentation to the proper court is appealable under Order XLIII Rule 1(a); a District Judge who refers such an order to the High Court acts without jurisdiction, and the High Court has no jurisdiction to entertain the reference.
2. No reference on hypothetical questions. The point must actually arise between the parties; a reference cannot seek an answer to a question that may arise in some future case.
3. No reference on a point already covered by binding precedent. A judge cannot ordinarily entertain a reasonable doubt on a point clearly decided by his own High Court, unless the decision is open to question on Privy Council or Supreme Court authority.
4. No reference where the only difficulty is a difference of opinion. The subordinate court must have a doubt of its own. A reference cannot be made because another court has reached a different view, or because the judge thinks a direction by a superior court is wrong.
5. No reference to interpret Supreme Court decisions. The subordinate court must read and apply the binding precedent itself; the meaning of a Supreme Court decision is not a question of validity within Section 113.
6. No reference by a tribunal or persona designata. The reference power is confined to courts of civil judicature.
7. No reference to circumvent appeal. Where an appeal is the prescribed remedy, reference does not lie even if both parties consent.

The reference and the trial court's powers in the meantime

Order XLVI Rule 2 gives the referring court a choice. It may stay the proceedings until the High Court answers, or it may proceed and pass a decree or order contingent on the answer. The election is the subordinate court's; the rule does not enact a default. What the rule forbids is execution. No decree or order in a case in which a reference has been made shall be executed until a copy of the High Court's judgment is received.

The discipline matters in execution proceedings. If a question of law arises during execution and the executing court refers it under Section 113, the execution must wait for the High Court's answer. The decree-holder cannot proceed with attachment or sale on the strength of the decree alone. The bar applies even where the decree has been passed before the reference and execution has commenced.

Pleadings and procedure when seeking a reference

From a litigant's standpoint, reference is moved by application — although the subordinate court can act suo motu. The application identifies the question of law, demonstrates that it is necessary for the disposal of the case, shows that the decree is not subject to appeal, and asks the court to draw up a statement of the case. The court is not bound to refer; it must independently entertain a reasonable doubt. If it does, it formulates a statement of facts (akin to the statement of the case in income-tax references), records the question of law, and adds its own opinion.

The High Court's answer is binding on the referring court only on the question referred. It is not a re-trial. Where the High Court returns the case under Order XLVI Rule 5 with directions to amend, the subordinate court must re-state the case and re-submit it. If the High Court alters, cancels or sets aside any decree or order in the case under Rule 5, that exercise of power is more than consultative — it is corrective. The exercise resembles, in its breadth, the discretion the appellate court enjoys when allowing an appeal from an original decree, although the route to it is the trial court's reference rather than the party's appeal.

Connections with the rest of the Code

Section 113 is a touch-point for several other procedural devices. A reference does not arrest the time for filing an appeal under Section 96 if the decree is appealable; appeal is then the prescribed remedy. Where the decree is non-appealable but a question of jurisdiction arises, the party may also consider the inherent powers of the court under Section 151 for incidental procedural relief, though Section 151 does not substitute for the reference power. The interaction between reference and the framing of the contingent decree matters because Order XLVI Rule 2 contemplates a decree drafted with two possible outcomes — the trial court drafts the decree as if both possible answers are in play, and the contingency is resolved when the High Court speaks.

The reference power must also be read alongside other reference and referral powers in the Code — most notably Section 89, which is a referral to ADR rather than a consultative reference. Both share the verb but operate on different planes. Article 228 of the Constitution, which empowers a High Court to withdraw to itself a case pending in a subordinate court that involves a substantial question of law as to the interpretation of the Constitution. Article 228 is broader: it covers withdrawal, not consultation, and the High Court itself disposes of the case. Section 113 sits below Article 228 — for non-constitutional questions of law and for statutory-validity questions referred upward by the trial court rather than withdrawn by the High Court.

MCQ angle — what gets tested

1. Forum. A reference under Section 113 lies only to the High Court. It does not lie to the District Court or to the Supreme Court.
2. Initiator. A reference can be made suo motu or on the application of any party — but always by the court, never by the party directly.
3. Mandatory or discretionary. The general body of Section 113 is discretionary ("may"); the proviso is mandatory ("shall"). The four conditions of the proviso are the standard MCQ.
4. Decree non-appealable. Order XLVI Rule 1 is the bar — appeal preempts reference.
5. Execution barred until answer received. Rule 2 stops execution even if the trial court has chosen to pass a contingent decree.
6. High Court's jurisdiction is consultative. It is neither original nor appellate. The High Court may decline, may quash, may answer beyond the question framed, and may alter the underlying decree under Rule 5 — but it does not retry the case.
7. Tribunals excluded. Only a court of civil judicature can refer. Tribunals and persona designata cannot.
8. Small-cause references. Rules 6 and 7 of Order XLVI carry their own predicates and do not depend on a non-appealable decree.

For the aspirant, the cleanest mental model is to treat Section 113 as an upward consultation in three settings — pre-decree, post-decree (where the decree is non-appealable), and execution — initiated by the trial court, controlled by Order XLVI's six conditions, mandatory only when constitutional validity is in issue, and answered by a High Court whose word the trial court must obey on the point referred.

Frequently asked questions

Can a party directly file a reference in the High Court under Section 113?

No. Section 113 read with Order XLVI Rule 1 puts the power of reference in the hands of the subordinate court alone. A party may apply to the trial or appellate court asking it to make a reference, but the court is not bound to act on the application. The reference is then drawn up by the court — either suo motu or on the application — with a statement of facts, the question of law, and the court's own opinion. A direct petition by a party invoking Section 113 in the High Court is not maintainable.

What is the difference between a reference under the body of Section 113 and a reference under its proviso?

Two differences matter. First, the trigger: the body covers any question of law or usage having the force of law; the proviso covers only questions as to the validity of an Act, Ordinance or Regulation. Second, the character: the body is discretionary — the court may refer; the proviso is mandatory — the court shall refer. The proviso conditions are also tighter: the determination must be necessary for disposal, the subordinate court must form the opinion that the statute is invalid, and there must be no prior contrary determination by the High Court or the Supreme Court.

Can a reference under Section 113 be made when the decree is appealable?

No, except for proviso references. Order XLVI Rule 1 expressly bars a reference where the decree is subject to appeal. The reasoning is that an appeal is the prescribed corrective; reference is not to be used as a substitute. A District Judge who refers an appealable order — for example, an order returning the plaint under Order XLIII Rule 1(a) — refers without jurisdiction, and the High Court has no jurisdiction to entertain the reference. The proviso operates differently because constitutional-validity questions cannot be decided by a subordinate court even in an appealable matter.

What is the nature of the High Court's jurisdiction on a Section 113 reference?

Consultative — neither original nor appellate. The High Court hears the parties if they appear, decides the point referred, and transmits its judgment to the subordinate court, which must then dispose of the case in conformity. Under Order XLVI Rule 5 the High Court may also return the case for amendment, or alter, cancel or set aside the decree or order out of which the reference arose. It is not, however, a re-trial; the High Court does not re-find facts and does not examine grounds outside the statement of the case unless the answer flows from the same record.

Can a tribunal under a special statute make a reference to the High Court under Section 113?

No. The expression "court" in Section 113 and Order XLVI Rule 1 means a court of civil judicature. A tribunal, a special-statute authority, or a person designated persona designata cannot make a reference under the Code, even on a question of statutory validity. The avenue for tribunals is to record their views in the proceeding and let the aggrieved party seek constitutional or revisional remedies in the High Court.

If the trial court has passed a decree contingent on the answer to a reference, can the decree-holder execute it before the High Court answers?

No. Order XLVI Rule 2 expressly bars execution. Even where the subordinate court has elected to proceed and pass a contingent decree rather than stay the suit, no decree or order in a case in which a reference has been made may be executed until a copy of the High Court's judgment on the reference is received. The bar applies whether the reference is made under the body of Section 113 or under the proviso, because Rule 4A applies Rules 2, 3 and 4 to proviso references as well.