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TMI Blog1948 (4) TMI 12X X X X Extracts X X X X X X X X Extracts X X X X ..... the decree or orders against which such an application can be filed by a person considering himself aggrieved by the decree or order. Sub-rule (2) of Rule 1 of this Order mentions the special circumstances in which a person who has not appealed may apply for review of judgment even after an appeal has been filed by any other party. Its proper place should have been in Section 114. Rule 1 mentions the decrees and orders against which a review application can be filed, presumably on account of its being a reproduction of Section 623 of the earlier Code of Civil Procedure, Act 14[xiv] of 1882. 4. Except for the case reported in Ramanandhan Chetti v. Narayanan Chetti ('04) 27 Mad. 602, which was overruled by the Full Bench in the case reported in Chemma Reddi v. Peddabi Reddi ('09) 32 Mad. 416, the reported: cases of the various High Courts have accepted the view that a review application does not become incompetent on account of the subsequent filing of an appeal. 5. It is also the view of all the Courts that when an appeal is filed subsequently to the filing of a review application, the hearing of the appeal should be stayed till the disposal of the review application a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no appeal has been preferred against a decree or order from which an appeal was allowed. This would be consistent with the view that once an appeal is filed the appellate Court has full jurisdiction over the matter, and that, therefore, the special power of review is exercisable only upto the time that an appeal is preferred against the order or decree sought to be reviewed. 9. Section 114, Clause (a) does not say directly that a review application must be filed before the filing of the appeal but allows a person to file an application for review of judgment if a person feels aggrieved by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred. The section really does not lay down a condition precedent to the filing of a review application but enunciates the circumstances in which an applicant may ask for review, the circumstances being mentioned in Clauses (a), (b) and (c). In this view of the matter, it would follow very clearly that once an appeal is filed, there is no right in the applicant to seek review of the judgment in appeal and there is no jurisdiction in the Court to deal with the review application which has becom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eved indicates to my mind that the person aggrieved of the decree or order has to make a choice of filing an appeal or an application for review so long as limitation for appeal is available. It may be mentioned that limitation for an application for review is not less than limitation for appeal. The appellate Court mainly sees whether the Court below has passed a correct order on the materials before it. In the case of review, the same Court which passed the order sought to be reviewed has mostly to see whether its previous order requires reconsideration on account of the grounds alleged in the application for review. An application for review would ordinarily presuppose that the order on the basis of the materials before the Court was probably a correct order. Evidence which could be looked into during the hearing of review applications could not have been available to the appellate Court in view of the limited extent of Order. 41, Rule 27, Civil P.C. So far as this High Court is concerned, this rule has been amended and now authorises the appellate Court to receive such fresh evidence which could not have been made available to the Court below. Thus the appellate Court can look ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terwards withdrawn before the admission of the review. The argument was that though the earlier special appeal had been withdrawn, it having been preferred earlier than the institution of the review application, the review application was not entertainable. The referring Bench was inclined to think that the preferring of an appeal was not equivalent to the admission of an appeal. The referring Bench observed: We are aware that it was decided in the English Department, on a reference from another district, that if the review be filed first, and afterwards a special appeal be preferred to the High Court, this filing of the special appeal cannot bar the right of the lower Appellate Court to try the review. As the decision quoted by the special appellant is opposed to the view we entertain in this matter, and the decision of the English Department may not be supposed to have the authority of a decision in a case judicially tried after argument, we think it proper to send up this special appeal to a Full Bench of five Judges, that it may, with reference to the said Sections 375 and 376, and the decision quoted by the Special appellant, decide authoritatively the validity or otherw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent is in a position to bring before the Appellate Court the matter to be reviewed. The manifest, intention of the provision is to avoid a conflict of Jurisdiction and to prevent any action on the part 01 the inferior Court which would have the effect of controlling the powers of the higher Court with reference to the matter actually under appeal. Though a party who has applied for a review is, for obvious reasons, not precluded from appealing, the Code does not provide for the procedure to be followed when an appeal is preferred after the review. Of course both proceedings could not go on simultaneously. 17. The Full Bench case reported in Chemma Reddi v. Peddabi Reddi ('09) 32 Mad. 416 is a leading case for the view that the pendency of an appeal instituted subsequent to the filing of an application for review does not make the review application incompetent. In this case, unlike the case reported in Ramanandhan Chetti v. Narayanan Chetti ('04) 27 Mad. 602, the applicant for : review did not file the appeal. The appeal was filed by the opponents subsequent to the filing of the review petition. It was held that there was no necessary implication from the provisions of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any higher tribunal, but an opportunity was afforded for re-hearing of the matter before the same or any other Judge up to the time when the decree or order had been enrolled. But if it had been enrolled, the correction was to be made by a bill of review. It may be, therefore, that the practice of the bill of review arose on account of non-appealability of the orders. 20. It was observed by their Lordships of the Judicial Committee in Chhajju Ram v. Neki ('22) 3 Lah. 127 at p. 132: In England it is only under strictly limited circumstances that an application for such, a review can be entertained. In India, however, provision has for long past been made by legislation for review in addition to appeal. But as the right is the creation of Indian statute law, it is necessary to see what such statutory law really allows. I would therefore not like to infer anything in connection with this question from what was or is the law in England. 21. Even in this case Chemma Reddi v. Peddabi Reddi ('09) 32 Mad. 416 it was observed at page 420: These are the only questions referred to us and I need not consider how far, in disposing of the application, the Court may take i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only when no appeal has been filed whether allowed by law or not. 23. Heaton, J. did not appear to agree with this view but agreed in the order proposed in view of the past practice. He however, observed: I should only like to add this; that I think there is great force in the reasoning of the District Judge. Personally also I am not at all satisfied that the conclusion reached by the Full Bench of the Madras High Court in the case in Chemma Reddi v. Peddabi Reddi ('09) 32 Mad. 416 is really correct. But for the reasons I have stated, I consider my own personal opinion in these matters as of no particular importance. Therefore I concur in the order which my learned colleague has proposed. 24. It would appear, therefore, that the question was not decided strictly on the interpretation of the various provisions of the Civil Procedure Code. Reference may also be made to the observations in the case reported in Pandu v. Devji ('83) 7 Bom. 287. It was observed at page 288: The intention of the law seems merely to be to prevent a party, against whom judgment has been passed, from availing himself of two remedies at one and the same time, and applying for a review whil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the disposal of the review application was within the jurisdiction of the reviewing Court after the appeal had been filed subsequent to the filing of the review application. 27. This question actually arose in the case reported in Pratap Singh v. Jaswant Singh 6 A.I.R. 1919 All. 67, and was decided in accordance with the views expressed in the cases reported in Chemma Reddi v. Peddabi Reddi ('09) 32 Mad. 416 and Narayan Purushottam v. Laxmibai 1 A.I.R. 1914 Bom. 1, without any discussion of the question, it being observed : In view of the case-law we must accept the contention of the applicants. 28. In the case reported in Rang Lal v. Lilawati ('29) 16 A.I.R. 1929 All. 375. Ashworth, J., observed: There is nothing in Order 47, Rule 1, or in other provisions of the Civil Procedure Code, so far as I am aware, which would justify the lower appellate Court in refusing to entertain the application for review merely on the ground that subsequent to the making of the application an appeal had been filed. The policy of the Code appears to me to be that a person cannot after filing a second appeal be allowed to apply to obtain a review of judgment in the lower Court wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h is whether the preferring of an appeal subsequent to the filing of an application for review makes the review application incompetent. 32. Section 114, Civil P.C., deals with applications for a review of judgment and in a case in which an appeal is allowed by the Code an application for a review of judgment can be made by any person considering himself aggrieved by the decree or order only when no appeal has been preferred. Order 47 contains further provisions regarding applications for review and lays down the circumstances in which such an application may be made. Sub-rule (2) of Rule 1 gives the conditions under which a party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party, The order then makes further provisions as to how applications for review are to be dealt with and in Rule 7 it is provided' that an order of the Court rejecting the application shall not be appealable. An appeal is, however, allowed from an order granting an application on certain specified grounds, namely, that the application was : (a) in contravention of the provisions of Rule 2, (b) in contravention of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al with all practical despatch all material papers in the suit or such papers as may be specially called, for by the Appellate Court. This rule has hardly any bearing upon the question that is before us and cannot be interpreted to mean that the jurisdiction of a Court to deal with any matters that it is authorised by law to deal with is ousted on the presentation of an appeal to the appellate Court. There are certain matters in which the jurisdiction of a Court admittedly continues in spite of an appeal having been preferred from its decree or order. A Court is authorised to execute its decree unless such execution is stayed by an order of the appellate Court. In cases in which a preliminary decree is passed by a Court the Court may, in spite of an appeal having been preferred from such decree, proceed with the preparation of the final decree unless further proceedings have been stayed by an order of the appellate Court. A Court may also in a case in which a decree is passed ex parte against a defendant proceed to hear and dispose of any application that may be presented to it by such defendant to have the decree set aside under Rule 18 of Order 9, although the defendant may, at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an appeal subsequent to the filing of an application for review does not make the review application incompetent. 34. There is also a volume of authorities in favour of this view. The leading case on the subject is the Full Bench case in Chemma Reddi v. Peddabi Reddi ('09) 32 Mad. 416. The judgment was delivered by Wallis, J. and the other two Judges constituting the bench-agreed with him. The learned Judge, after discussing the relevant provisions of the Code of Civil Procedure of the year 1882 (Act XIV of 1882) in regard to applications for review - which were more or less the same as those contained in the present Code, Act v of 1908 - observes: The Legislature has thus conferred upon the party a right to apply for review and upon the Court jurisdiction to entertain the application, and has directed how it shall be dealt with. When a right and a jurisdiction are conferred expressly by statute in this way it appears to me that they cannot be taken away or out down except by express words or necessary implication. There, are no express words and the question therefore is, is there any necessary implication? No such implication arises from the terms of Section 623 itself ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the decree by the Appellate Court. He goes on to say: If the framers of the Code had intended to introduce any such rule I think they would have said expressly not only that application for review should not ordinarily be made after the filing of an appeal, but also that the filing of an appeal should determine the jurisdiction to dispose of applications made before the filing of the appeal. He then comes to the conclusion that it is impossible to hold that there is any necessary implication that the filing of an appeal operates as a stay of proceedings on an application for review. He, therefore, held that the case in Ramanandhan Chetti v. Narayanan Chetti ('04) 27 Mad. 602 had been wrongly decided and that where an application for review is presented [by a party and an appeal is afterwards preferred the Court to which the application for review is made is thereby not deprived of jurisdiction to entertain the application. This view was followed by the Calcutta High Court in Pyari Mohan Kundu v. Kalu Khan 4 A.I.R. 1917 Cal. 29 and Shashi Bhushan v. Raghunath Mandal ('20) 7 A.I.R. 1920 Cal. 584, by the Allahabad High Court in Pratap Singh v. Jaswant Singh 6 A.I.R. 191 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is the intention of the Legislature that the special remedy by way of review for which an application has usually to be made to the Judge who passed the decree, must be sought without any avoidable delay, and the provision that it must be sought not only before an appeal is presented by the aggrieved party, but, in most cases also by any other party to the decree, may have been made with that object. But even if this is an anomaly, it is for the legislature to rectify it and Courts of law will not be concerned with it. 37. I would, however, like to mention one matter in connection with this case. The question whether an appeal had been preferred or not after the making of the present application for review was not raised before the Bench making the reference and it was assumed that an appeal had in fact been so preferred. It appears,' however, that what has been done is that an application has been made to the High Court for a certificate that it is a fit case for appeal to His Majesty in Council. This application has not yet been decided. The question is; whether the mere making of such application does or does not amount to the preferring of an appeal and should the findin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n considering himself aggrieved by a decree or order specified in Clauses (a), (b) or (c) of Section 114 to apply for a review on one of the following grounds : (a) discovery of new or important matter or evidence which, notwithstanding the fact that the party aggrieved had exercised due diligence, was not within the knowledge of the party or could not be produced by him at the time when the decree was passed or the order made, (b) some mistake or error apparent on the face of the record, or (c) for any other sufficient reason. When the Court grants a review it is open to it to either re-hear the whole case or confine the hearing only to the particular point on which the review was allowed. It will be noticed that one of the conditions laid down for an application for review is that it must be filed before an appeal has been preferred. On the question as to what is meant by the words an appeal has been preferred, I may refer to a case J.H. Reyfield v. Raj Narain ('37) 41 C.W.N. 129 in which a decree was passed by the High Court of Calcutta in its ordinary original civil jurisdiction on 4th March 1986. The memorandum of review was filed on 20th May 1936. Five days later, i.e., ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bound to proceed with the application for review notwithstanding the fact that an appeal has been subsequently filed in the ease. But that power exists so long as the appeal not heard, because once the appeal is heard, the decree on appeal is the final decree in the case, and the application for review of judgment of the Court of first instance can no longer be proceeded with. Whether it can be so proceeded with (alter the appeal is heard) in cases coming under Order 47, Rule 1(2) it is unnecessary for us to consider. On the other hand, if the application for review is successful, the apppeal cannot proceed. 42. To the same effect is a very early case in Bhurrut Chander v. Ram Gunga Sein ('66) 5 W.R. 59, where it was held that- It is clear that, if a review be applied for in proper time and before an appeal has been preferred, the Judge is not prevented from proceeding upon the application for review by the subsequent presentation of appeal, and he has full power, and is bound to proceed under the application for review. This was a case under the Code of 1859, but substantially there has been no change in the sections relating to review in the Code of 1908. 43. I h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter raised in this reference from another angle, I may point out that in 38 Bom. 41610 at p. 419, Shah J. made the following observations: In a matter of this kind, I think, it is desirable that the practice of different High Courts should be uniform as far as possible, and I see no reason whatever to think that the practice in this Presidency has been in faot different or that it ought to be different. [45a] It is quite clear that the practice in this Court has so far been consistent with the view of the law taken in the Full Bench case in Chemma Reddi v. Peddabi Reddi ('09) 32 Mad. 416. I am satisfied that there is no sufficient ground, particularly when there is no express provision in the Code which would render an application for review incompetent on the ground that subsequent to its presentation an appeal has been preferred, for changing that practice. I am not impressed with the argument that the practice of allowing a review application to be heard and disposed of before an appeal which was preferred after the review application had been filed would lead to difficulties regarding jurisdiction. I would, in this connection, particularly refer to the observations of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich an appeal is allowed, but from which no appeal has been preferred by a decree or (b) order from which no appeal is allowed, or (c) by a decision on a reference from a Court of Small Causes and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order. Order 41, Rule 27 reads thus: (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the appellate Court. But if, (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (b) the appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the appellate Court may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id not allow in appeal a party to produce the record of a previous suit when the omission to do it was attributable to the negligence of the party and it was not necessary for pronouncing, their judgment to look into it. For enabling a. Court to entertain a review application, one of the most important grounds is the discovery of new and important matter which was not within the knowledge of the party when the decree was-passed. It will be noticed that the power of review which has been conceded to an aggrieved party is different in nature from that which the Court possesses under Order 41, Rule 25 which gives a, Court power to frame issues and refer them for trial to the Court against whose decree the appeal has been preferred. 50. In Ram Chandra v. Secy. of State 3 A.I.R. 1916 P.C. 126 the judgment of the Board was delivered by Lord Parker who observed that: In their Lordships' opinion, even if it be competent to the High Court to remit a ease for re-hearing on as issue not raised in the pleadings or even suggested in. the Courts below, this ought only to be done in exceptional cases for good cause shown and on payment of all costs thrown away. 51. Admittedly this Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f review is part of the original jurisdiction of the High Court and such an application should be made to the High Court and not to the Court of Appeal which has no original jurisdiction of that kind. 52. This case was approved in a later case in Charles Bright Co. v. Sellar (1904) 1 K.B. 6. 53. In petitions for re-hearing to which the right of review is analogous their Lordships of the Judicial Committee had held that: there may be exceptional circumstances which will warrant this Board, even after their advice has been acted upon by Her Majesty in Council, in allowing a case to be reheard at the instance of one of the parties. For a discussion of the whole question of rehearing before the Judicial Committee see Lord Beading's Judgment in In re Transferred Civil Servants (Ireland) (1929) 1929 A.C. 242 53. I have referred to the history of review jurisdiction because it is essential to remember that the power of review which finds a place in the Code of Civil Procedure was conceded to Indian 'Courts in statutes s drawn up by lawyers who were steeped in the tradition of British jurisprudence and who knew what its origin, purport and implication were. 54. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e applicant and the appellant, when being respondent, he can present to the appellate Court the case on which he applies for the review. The importance of Order 47, Rule 1(2) therefore is that it contemplates certain conditions under which a review can be prosecuted/even after the filing of an appeal. It may be said that the implication of Order 41, Rule 13(2) which makes it obligator on the Court from the decree of which an appeal is preferred to transmit with all practicable despatch all material papers in the suit, or such papers as may be specially called for by the appellate Court, is that the Court can hear no review application as it will have before it no record of the case. No such inference can be drawn an under certain circumstances the Code itself contemplates, as has been pointed out before, that the Court from whose decree an appeal has been preferred should proceed with the application for review. I have referred to some instances and certain other instances have been pointed out by my learned brother Harish Chandra J. which constitute an exception to the rule that after an appeal baa been filed the appellate Court should alone deal with the matters connected with th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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