Raghubar Dayal, J.
1. The question referred to the Full Bench is whether the filing of an appeal subsequent to the filing of an application for review makes the hearing of the review application incompetent.
2. Section 114, Civil P.C., gives the right to apply for review, and is:
Subject as aforesaid, any person considering himself aggrieved:
(a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed by this Code, or
(c) by a decision on a reference from a Court of Small Causes,
may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit.
3. Order 47 deals with the procedure with respect to the disposal of such applications for review. Rule 1 of this Order, however, mentions in Sub-rule (1) not only the grounds on which an application for review of judgment can be filed, but also 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 and that the decision of the appeal or the granting of the review application will make the hearing of the other incompetent in view of the fact that the decree under appeal or the decree sought to be reviewed as the result of the review of judgment, as the case may be, would have been substituted by another decree.
6. The accepted view has been that the Code of Civil Procedure did not contemplate the simultaneous proceedings of review and appeal, but it did not specifically provide that a review application would become incompetent after the filing of the appeal and, therefore, a review application does not become incompetent merely on account of an appeal being filed subsequently and must, therefore, be decided by the Court having jurisdiction over it.
7. I am of opinion that when it is apparent that the Code of Civil Procedure did not contemplate the simultaneous proceedings of appeal; and of review, the mere fact that it did not specifically say that the review application would become incompetent after the filing of an appeal should not be any bar for holding that the review application is incompetent. A review application should be heard after the filing of an appeal if the Code definitely says that it should be heard even though an appeal has been preferred. Its hearing should not be dependent on the order of an appellate Court to keep the hearing of an appeal pending till the review application in disposed of. The fate of a case or appeal should not be dependent on the relative priority of the decision of a review application or an appeal. There should be a well-laid principle as to which remedy or order should be available to a party and in what circumstances.
8. It is clear from the provisions of Section 114 that an application for review of a judgment is allowed against an appealable decree or order only when no appeal has been preferred against it, and that applications for a review have been allowed in two other cases in which there is no right of appeal, the cases being decrees or orders from which no appeal is allowed by the Code or a decision on a reference from a Court of Small Causes. It authorises the Court to make such orders on the application for review as it thinks fit. I am inclined to the view that the Court's powers to pass such orders are also subject to the condition that upto the time the Court's orders are passed 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 become incompetent. After the filing of the appeal, it cannot be said that the applicant is aggrieved by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred.
10. It is true that under Order 47. Rule 1, Sub-rule (2) applications for review can be presented even after the filing of an appeal by persons other than the applicants for review. It is, however, also clear from its provisions that such applications for review presented after the filing of an appeal would be restricted to only such matters which could not be decided in the appeal by the non-applicant. A respondent can file an application for review if he is unable to present to the appellate Court the case on which he seeks to apply for review. Any other party can apply for review only when the ground of such appeal is not common to him and the appellant. It would appear that in such cases the orders of the appellate Court will not be with respect to those matters which would be considered by the Court of review, and that, therefore, there is not expected to be any question of conflict of decisions or jurisdiction. In fact the position would be that the subject-matter of the decree sought, to be reviewed would not be within the jurisdiction of the appellate Court to interfere and, therefore, in substance the position would be that the review application is with respect to such matter which is not under appeal.
11. It appears to me that if an application for review can be pursued to its logical conclusion after the subsequent filing of an appeal, the condition that an application for review can be filed against appealable decrees or orders if no appeal has been preferred would become nugatory by people resorting to filing review applications first and appeals later on. Thus the policy whatever it be which must account for the provision of Section 114, Clause (a) would be defeated.
12. Right of appeal has been expressed as a right of appeal against a decree or order. The right of review is not so expressed. It is really conferred on a person aggrieved by an order or decree. Order 47, Rule 1 does not say that any such person may apply for the review of judgment, but says that any such person who desires to obtain a review of the decree passed or order made against him may apply for a review of judgment. Reference to the desires of a person aggrieved 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 into the fresh evidence which is sought to be laid before the Court which passed the decree or order. This circumstance tends to show that once the matter is before the appellate Court the appellate Court which has got a wider jurisdiction should decide the matter and not the reviewing Court which can look at the matter in a limited form only.
13. It may be said that if the Legislature intended that an application for review could be heard even after an appeal had been filed subsequent to the filing of the review application and if it had been found essential that the hearing of such an appeal be stayed till the decision of the review application, the Legislature should have enacted a provision analogous to Section 10, Civil P.C., for the stay of hearing of the appeal till the decision of the review application. It is within the realm of possibility that the reviewing Court and the appellate Court may finally dispose of the review and the appeal without knowing the existence of the other. What would be then the legal position about the two orders? It may be said that whichever order was decided first would be operative and the subsequent order would be held to have been passed without jurisdiction. It may be argued that the order of the appellate Court should be preferred to the order of the reviewing Court. It would be very difficult if the two orders happen to be passed on one and the same date because it would not be possible then to piece the two orders according to their respective priority in time. Surely such a remote possibility could not have been contemplated by the Legislature without providing for it and the interpretation of the various provisions of the Civil Procedure Code should, if possible, be such as to avoid the happening of such a contingency in which it would be difficult to see as to which order should be treated as a valid order and which should not be treated as a valid order.
14. The oldest case referred to is reported in Bhurrut Chander v. Ram Gunga Sein ('66) 5 W.R. 59. This was a special appeal against the decision passed by the lower appellate Court in review in reversal of its former decision. The special appellant argued that the lower appellate Court had no authority to entertain and admit review, because a petition of special appeal had r been already preferred against its first decision. This special appeal was afterwards 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 otherwise of the plea taken by him before us, and to lay down the construction of the law upon this right of filing review after the registration of a special appeal application.' The Full Bench found that actually the facts were that the review was applied for on 6-2-1865, and that the appeal was not filed until 18-2.1865 and then observed:The question, therefore, referred to the Full Bench, viz., whether a review can be admitted by a lower Court, after an appeal has been preferred to this Court, does not arise.
The Pull Bench, however, proceeded further and observed:
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.
It would appear, therefore, that the expression of opinion about the continued competency of the application for review after an appeal had been preferred amounts to an obiter dictum. Further, no reasons for the view have been mentioned in this judgment.
15. The next case is Thacoor Prasad v. Baluck Ram ('83) 12 C.L.R. 64. The contention that the application for review could not be dealt with because an appeal had been preferred against the decree was considered as not well-founded as no application had been made in the matter of the appeal to Her Majesty in Council by the time when the application for review was presented. No reasons for the view, except a reference to a Full Bench case in Bhyrub Chunder v. Madhubram Surmah ('73) 11 Beng. L.R. 423 (F.B.) are given in this judgment.
16. The next case is Ramanandhan Chetti v. Narayanan Chetti ('04) 27 Mad. 602. As noted above, it has been overruled in a later Full Bench case reported in Chemma Reddi v. Peddabi Reddi ('09) 32 Mad. 416. In this case it was observed:
Section 623 of the Code, (corresponding to Order 47, Rule 1, Civil P.C. of 1908), relating to review, even more plainly points to this view instead of, as contended for the respondent, to the contrary. Not only is an application for review by a party who has already appealed disallowed by that section, but even in the case of a - party not appealing no review lies when there is an appeal by some other party on a common ground, or where the former as a respondent 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 the Civil Procedure Code that the subsequent filing of the appeal made the review application incompetent. It -was observed with respect to the argument that on the filing of an appeal the further litigation and all matters connected therewith are transferred to and placed under the control of the appellate Court:
Now, after an appeal has been filed, the appellate Court is seized of the case and should no doubt be applied to rather than the Court of first instance unless the law expressly enjoins the contrary, as was held in Pichuvayyangar v. Seshayyangar ('95) 18 Mad. 214; but it is a very different thing to press this principle so far as to say that the act of a party in filing an appeal deprives the Court of first instance of power to dispose of an application which has been properly made to it in the exercise of its jurisdiction.
It may look astounding that the act of a party should so deprive the Court to proceed with an application by another party, but if the same party elected to file an application for review first and then also filed an appeal, the deprivation of the review Court to proceed with the review application would not appear so. To my mind it should appear so even if the different party goes in appeal. The parties are concerned really with the final decision of the dispute between themselves. The filing of an appeal gives them a right of such a decision by a superior Court and should ordinarily be preferred to the right of a decision by a lower Court which itself would be further subject to an appellate order later on.
18. Reference has also been made in this case to the procedure of bills of review in the Courts of Equity in England and it has been considered that the framers of the Civil Procedure Code of 1882 who were English lawyers were engaged in conferring upon Indian Courts, subject, no doubt, to modifications and restrictions, jurisdiction to grant relief by way of review of judgment similar to that which had been exercised by Courts of Equity in England and by the supreme Courts in the exercise of their equitable jurisdiction. The history of legislation in England is very much different from the history of various Codes in this country.
19. Further the observation of Cozens-Hardy Charles Bright & Co. v. Sellar (1904) 1 K.B. 6 at p. 11, shows, that till certain period there was no appeal from the Lord Chancellor to 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 into account if brought to its notice the fact that an appeal has been filed, but I am inclined to think that in such a case the observations of Cotton, L.J., in Ex parte, Banco De Portugal (1880) 14 Ch. D. 1, may be applicable, and that the jurisdiction ought to be exercised with the greatest care and only in a very strong case.
These observations practically take away the effect of the power granted to the reviewing Court to proceed on 'with the review application even after an appeal had been filed against the order; under review. In most cases, therefore, the Court has to dispose of the application for review by saying that as appeal had been filed, it did not consider it proper to grant the application for, review.
22. The next case is Narayan Purushottam v. Laxmibai 1 A.I.R. 1914 Bom. 1. In this case the decision of the Full Bench of the Madras High Court was followed and Shah, J. observed:
On a full consideration of the arguments on either side of the question, I have come to the conclusion that this Full Bench decision should be followed.... 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 fact different or that it ought to be different.
It was further observed:
There certainly is no express provision in the Code which renders the application incompetent on the mere presentation of an appeal by the same party at any subsequent time. In my opinion there is no practical inconvenience so long as the appeal is not prosecuted during the pendency of the review application. The present case fairly illustrates that it is only by following the practice which has been sanctioned by the Madras High Court, that the remedy by way of review can be secured to the aggrieved party in an appropriate case, without requiring him to jeopardize his right of second appeal.
The adoption of the practice of keeping the appeal pending till the decision of the review application is in itself, to my mind, a strong argument against the view that it is competent to proceed with the review application after an appeal had been filed, specially when the Civil Procedure Code does not provide for staying the hearing of the appeal and while it provides and contemplates the filing of review applications 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 while his appeal is pending. This is indicated by the last paragraph of Section 623 of the Code, which qualifies the first portion of that section by saying that 'a person who is not appealing from a decree may apply for a review of judgment notwithstanding the pendency of an appeal by some other party,' thus indicating that it is the pendency of the appeal, and nothing else, which stands in the way of the application for review. This is only just and reasonable; but it would be hardly just and reasonable to hold that a party who discovered fresh evidence, perhaps only a day after he had presented his second appeal should not be allowed to forego his second appeal, and apply for a review to the only Court which could consider his new evidence.
In this case the High Court allowed the withdrawal of an appeal in order to enable the appellant to file an application for review. As mentioned earlier, amendment in Order 41, Rule 27, Civil P.C., by this Court would enable the appellate Court to take into consideration the fresh evidence. Without such an amendment only the reviewing Court could have looked into it.
25. The case reported in Pyari Mohan Kundu v. Kalu Khan 4 A.I.R. 1917 Cal. 29, referred to the cases mentioned above and agreed with the views of the Full Bench of the Madras High Court and observed:
Having regard to the terms of the section and the cases referred to above, we are of opinion that the Court has power, and in fact is bound to proceed with the application for review notwithstanding the fact that an appeal has been subsequently filed in the case. But that power exists so long as the appeal is 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 (after 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 appeal cannot proceed.
26. The case reported in Kanhaiya Lal v. Baldeo Prasad ('06) 28 All. 240, did not really consider the question before us. It merely held that when a review application had been decided, the appeal against the order which had been reviewed was not competent. The case did not deal with the question whether 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 : AIR1929All375 . 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 which should have the effect of altering the judgment and decree from which he had appealed. The Code has not contemplated a case where having applied for review the same person appeals. It might be deemed a good reason in such a case for rejecting the appeal, but, as an application for review has been filed no sufficient ground appears to me to exist by reason of the subsequent filing of an appeal for rejecting the application.
The right to file an appeal is a general right which is not restricted in any way. The right to apply for review of a judgment is restricted under Section 114 and Order 47, Rule 1, Civil P.C. It should not, therefore, be an appeal subsequently filed which should be rejected as being incompetent-in view of a review application having been filed earlier, but it should be the review application which should be rejected on the ground that it is no more competent, an appeal having been filed against the decree sought to be reviewed and the matter being within the purview of the appellate Court which, as indicated earlier, can look into the grounds on which the review application is presented.
29. I do not agree with the views expressed in the above eases. I have already expressed the opinion that Section 114, Civil P.C., does not refer to the non-filing of an appeal as a condition precedent for the filing of an application for review, but refers to such non-filing as defining of such appealable decrees or orders from which a party aggrieved can file an application for review. It may also be implied from the facts that the right of review in other cases is also given against such decrees or decisions from which no appeal is provided, that it has been found essential that the hearing of the appeal filed subsequent to the filing of a review application should remain postponed till the decision of the review application in order to make the review application effective and that there is consensus of opinion that simultaneous proceedings of appeal and review were not contemplated by the Code.
30. I am, therefore, of opinion that the question referred to the Full Bench should be answered in the affirmative and to the effect that the filing of an appeal subsequent to the filing of an application for review makes the hearing of the review application incompetent.
Harish Chandra, J.
31. The question that has been referred to this Bench 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 the provisions of Rule 4, or (c) after the expiration of the period of limitation prescribed therefor and without sufficient cause. The rule does not provide for the taking of objection to an order granting an application for review on the ground that an appeal was prefer-red by the person applying for review subsequent to his making the application. There is thus nothing in the Code to authorise the rejection of an application for review on the filing of an appeal subsequent to the making of such application.
33. It is, however, contended that once an appeal has been preferred from a decree or order the Court passing the decree or order is no, longer seized of the case and that it would therefore be illegal for that Court to proceed with aft application for a review of its judgment that may have been presented to it. This argument is, in my view, without any substance. Reference is made to Sub-section (2) of Section 107 of the Code which provides that the appellate Court shall, subject to such conditions and limitations as may be prescribed, have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by the Code on Courts of original jurisdiction in respect of suits instituted therein. No doubt, after an appeal has been presented to the appellate Court the latter is authorized by this section to exercise the same powers and perform as nearly as may be the same duties as a Court of original jurisdiction. But this is not the same thing as saying that after an appeal has been preferred to a higher Court the trial Court has no power to take any proceedings or to deal with any application connected with the subject-matter of the suit. But even if this rule is interpreted in the manner suggested by Mr. A.P. Pandey on behalf of the opposite party, it will be noted that the rule is 'subject to such conditions and limitations as may be prescribed' and when the Code expressly gives power to a Court to entertain an application for a review of its judgment in certain circumstances, this section cannot be regarded, as ousting its jurisdiction to deal with such application after the presentation of an appeal to the appellate Court. Reference is also made to Sub-rule (2) of Rule 13 of Order 41, which requires the Court from whose decree an appeal has been preferred to send to the appellate Court on receiving notice of the appeal '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 the same time, have preferred an appeal to the higher Court against that decree. As a matter of fact the Court is at full liberty to proceed with the execution of its decree or to dispose of such other matters as may arise in the case after the passing of the decree even though an appeal may have been preferred to the higher Court unless further proceedings have been stayed by an order of the appellate Court. Thus when the law gives a Court jurisdiction to entertain an application for a review of judgment, such jurisdiction 'cannot be taken away or cut down except by express words or necessary implication.' As we have seen, there are no express words in the Code which may oust such jurisdiction on an appeal having been preferred to a higher Court, nor can any necessary implication be inferred from the terms of Section 114 or the rules contained in Order 47, Civil P.C. Sub-rule (2) of Rule 1 of Order 47 is a very important rule in this connection. This sub-rule, as we have seen, allows a party who is not appealing from a decree or order passed by a Court to apply in certain circumstances for a review of judgment notwithstanding the pendency of an appeal by some other party. It is thus clear that the Legislature never intended that as soon as an appeal had been preferred to a higher Court the Court passing the decree should have no further jurisdiction to deal with an application for review and this sub-rule cuts at the root of the contention of learned Counsel for the opposite party that once an appeal has been preferred the Court passing the decree is no longer seized of the case and that it cannot legally proceed with an application for a review of its judgment that may have been presented to it. The language of Sub-rule (1) of Rule 7 is also important. As we have been, according to that sub-rule an order granting an application for review may be objected to only on one of the three grounds mentioned in that sub-rule. The sub-rule does not permit the making of an objection to an order granting an application for review on the ground that an appeal has been preferred to the appellate Court from the decree or order which is-the subject, matter of review subsequent to the making of such application. Prom the general scheme of the Code of Civil Procedure and the specific provisions contained in Section 114 and Order 47, I feel satisfied that the preferring of 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 which provides, by way of exception, that, in certain cases, an application for review may be made even after an appeal has been filed and if the Court can proceed to hear such an application why not also an application made before the' filing of an appeal? No such necessary implication arises in my. opinion from the other provisions of the Code, such as Section 545 which provides that the filing of an appeal shall not operate as a stay of execution, or Section 550 which provides for the transmission of papers to the Appellate Court, or from Section 582 which provides that the Appellate Court in appeals shall have the same, powers and, as nearly as may be, perform the same duties as are conferred or imposed by the Code on Courts of original jurisdiction in respect of suits instituted under the Code, because it does not seem to me to follow necessarily from these provisions that a Court is-precluded from proceeding to dispose of an application for review properly filed before it owing to an appeal having been filed subsequently.' In an earlier ease 27 Mad. 6021 a different view had been taken but that view was based on the general proposition accepted by the Court on the authority of certain American decisions that : 'on the filing of an appeal the further litigation and all matters connected therewith are transferred to and. placed under the control of the Appellate Court,' The learned Judge did not agree with that decision and was of opinion that the principle could not be pressed:
so far as to say that the act of a party in filing an appeal deprives the Court of first instance of power to -dispose of an application which has been properly made to it in the exercise of its jurisdiction.
After this the learned Judge goes on to say that, the Code was framed by English lawyers:
engaged in conferring upon Indian Courts, subject, no doubt, to modifications and restrictions, jurisdiction to grant relief by way of review of judgment similar to that which had been exercised by Courts of Equity in England and by the supreme Courts in the exorcise of their equitable jurisdiction.
He then refers to certain books and says:
Not only is there no warrant for the notion that the filing of an appeal deprived the Court of jurisdiction to proceed further with a bill of review but it was even held that a bill of review might be filed after the affirmance of 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 A.I.R. 1919 All. 67 and Rang Lal v. Lilawati : AIR1929All375 and by the Bombay High Court in Narayan Purushottam v. Laxmibai 1 A.I.R. 1914 Bom. 1.
35. No doubt, the party aggrieved from a decree or order passed by a Court has thus, in certain cases, been provided with a double remedy, one by way of an application for a review of judgment to the Court passing the decree or order and another by way of an appeal to a higher Court provided the appeal is presented after a review of judgment has been applied for by him. For some reasons such multiplicity of jurisdiction may be considered to be undesirable although the law does in fact allow such multiple remedies in certain other cases also. But in the case of decrees or orders passed by the first appellate Court the dismissal of an application for review on a second appeal being preferred to the High Court under Section 100, Civil P.C., may cause real hardship to the aggrieved party. For a second appeal from an appellate decree is allowed by Section 100 in certain specified circumstances only and the grounds upon which a second appeal may be preferred would be quite different from the grounds upon which an application for a review of judgment would be permissible under Rule 1 of Order XLVII of the Code and if the first appellate Court is deprived of jurisdiction to deal with such application for review on second appeal being preferred from its decree to the High Court the party making the application would in fact be put to hardship inasmuch as he would not be able to obtain the remedy which he seeks from the first appellate Court by way of an application for a review of judgment, from the High Court in second appeal. There may be other instances also in which such hardship is likely to result if on the subsequent filing of an. appeal by an aggrieved party his review application is rendered incompetent. However, in interpreting, the law Courts are not concerned with such matters and if there is in fact a defect in the law it is for the Legislature to remedy it by an amendment of the Code.
36. It seems that at times Courts have to some extent been oppressed by the fact that al-though an aggrieved party is provided with a double remedy if his review application precedes his appeal, he is, for no obvious reason, deprived of it if he happens to present an appeal first. The reason may perhaps be that it 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 finding of the Bench be that it does not amount to the making of an appeal, any decision which we may arrive at on the question which has been referred to us will, to my mind, be more or less in the nature of an obiter dictum.
38. For the reasons given above my answer to the reference is in the negative.
Sapru, J.
39. The question which this Full Bench has been constituted to consider, is Whether the filing of an appeal subsequent to the filing of an application for review makes the hearing of the review application incompetent?
40. I agree with my brother, Harish Chandra, in answering this question in the negative and I propose to give a few reasons in support of my view. It strikes me that the two remedies contemplated by the Code of Civil Procedure under certain circumstances in the case of a party considering himself aggrieved by a decree or order of a Court are : (a) appeal which is always to a superior tribunal, and (b) review of judgment which is always to the Court which passed the decree or made the order. There is a clear distinction between these two remedies and -in this connection I may refer to the observations of their Lordships of the Judicial Committee in Moheshur Singh v. Bengal Government (1857-59) 7 M.I.A. 283 which I quote below:
A review is perfectly distinct from an appeal, the primary intention of granting a review was a reconsideration of the same question by the same Judge, as contradistinguished to an appeal which is a hearing before another tribunal. We do not say that there might not be cases in which a review might lake place before another and a different. Judge; because death or some other unexpected or unavoidable cause might prevent the Judge who made the decision from reviewing it; but we do say that such exceptions are allowable only ex necsssitate. We do say that, in all practicable cases, the same Judge ought to review.
41. The powers of an appellate Court are to be found enumerated in Section 107 read with Order 41, Civil P.C. The grounds which would justify a Court to entertain an application for review have, on the other hand, been laid down in Section 114 read with Order 47, Rule 1, Civil P.C. Order 47, Rule 1 is a reproduction of Section 623 of the Code of 1882 which is substantially the same as Section 376 of the Code of 1859, It will be noticed that it is open under these sections and orders to a person 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., on 25th May 1936 a memorandum of appeal was filed against the decree of 4th March 1936, The question was whether the review application was filed at a time when no appeal had been preferred. The view of the Court was that the review application had been filed before the appeal was prefer, red. Pankridge J. held that the review had been filed before the appeal was preferred and that the Court could not be said to have been deprived of the jurisdiction to entertain the application for review on the ground that when the application came on to be dealt with an appeal was pending. The crucial date, therefore, is the filing of the application for review. If on that date the appellate Court has no appeal pending before it, the review application is under the Code, as it stands, competent. The power to entertain the review remains in existence till such period as the appeal is not heard and disposed of. After the appeal has been heard and a decree passed by the appellate Court, it is not open to the Court before whom the application for review was presented to proceed with its hearing. But where an application for review comes to be heard and decided before the appeal is heard and finally disposed of, the position is that it is incompetent for the appellate Court to hear the appeal for the new decree is, in that case, held to supersede the decree appealed from. That this is the law is clear from a long course of decisions to which attention has been drawn pointedly by my brother, Harish Chandra. I may say that my interpretation of those cases is that they lay down that where an application for review of judgment is granted, the order for review supersedes the original decree and the decree under appeal ceases to exist and the appeal cannot be heard. This proposition is deducible from the following cases : Joykishen Mookerjee v. Ataoor Rohoman ('81) 6 Cal. 22, Kanhaiya Lal v. Baldeo Prasad ('06) 28 All. 240, Brijbasi v. Salig Ram ('12) 34 All. 282, Pyari Mohan Kundu v. Kalu Khan 4 A.I.R. 1917 Cal. 29, Shidramappa v. Guru Shantappa 16 A.I.R. 1929 Bom. 183, Aditya Kumar Bhattacharjee v. Abinash Chandra 18 : AIR1931Cal323 and Sm. Soudamini Dasi v. Nabalak Mia : AIR1931Cal578 . The position, then, is that, as laid down by Chatterjee and Newbould JJ. in Pyari Mohan Kundu v. Kalu Khan 4 A.I.R. 1917 Cal. 29.
the Court has power, and in fact is 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 have referred to the position that would arise if either the appeal or the review application is disposed of earlier, in order to indicate that possible - conflicts of jurisdiction, on the desirability of preventing which emphasis was laid by learned Counsel for the respondent, are avoidable even under the law as it exists if procedure such as was indicated in Pyari Mohan Kundu v. Kalu Khan 4 A.I.R. 1917 Cal. 29 by Chatterjea and Newbould JJ. is followed.
44. The position, as I see it, is that an aggrieved party has been given by any express enactment of the Indian legislature two possible but separate and distinct remedies to which he can have recourse on the fulfilment of certain conditions. The fact that an aggrieved party presents an appeal to the superior Court subsequent to the presentation of an application for review to the Court which decided the case is not sufficient, under any provision of the Code, to take away the right of having his review application heard and disposed of, if it comes up for hearing and disposal before his appeal has been heard and disposed of. Where a right has been conferred upon a person and a Court has been vested with jurisdiction in a certain class of cases, that right and jurisdiction cannot be taken away or cut down except, as was pointed out by Wallis J. in the Full Bench case in Chemma Reddi v. Peddabi Reddi ('09) 32 Mad. 416, by express words or necessary implication. This Full Bench overruled an earlier decision of that Court in Ramanandhan Chetti v. Narayanan Chetti ('04) 27 Mad. 602 which had proceeded upon the basis that after an appeal has been filed, there is a transfer of all matters connected therewith to the appellate Court. The law relating to review, interpreted by Wallis J. in the Full Bench case to which reference has been made, has been consistently followed by other Courts before which the question had arisen. Reference was made, in the course of argument, to cases in which the question which this Bench is considering came up for consideration before different High Courts and it is noticeable that the view that they consistently adopted was that to which expression was given in the Full Bench decision in Chemma Reddi v. Peddabi Reddi ('09) 32 Mad. 416 : vide Pyari Mohan Kundu v. Kalu Khan 4 A.I.R. 1917 Cal. 29, Narayan Purushottam v. Laxmibai 1 A.I.R. 1914 Bom. 1.
45. Viewing the matter 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 Shah J. that:
In my opinion there is no practical inconvenience so long as the appeal is not prosecuted during the pendency of the review application.
46. To take away a right which the Code has conceded to a party aggrieved on the ground that by necessary implication the Code intended that a review application should become incompetent the moment a party aggrieved chooses to file, after presenting that application, an appeal, would be to give the words 'necessary implication' a meaning they are not capable of bearing. I take the words 'necessary implication' to mean an inescapable or inevitable implication, i.e., a conclusion or inference which follows as a matter of course from the scheme of the various sections, orders and rules regarding appeal and review in the Code of Civil Procedure. I do not think that, on a fair interpretation of the sections, orders and rules to be found in the Code of Civil Procedure relating to appeal and review the irresistible conclusion or inference can be drawn that the Court is left with no choice but to hold that the intention of the legislature was to take away or cut down, on his availing himself of the remedy of appeal whether before or after the presentation of an application for review, the right of review that a party aggrieved by a decree or order had been given by the Code. To go thus far would be to undertake a function which it is not competent for Courts to perform, namely, that of legislation. In support -of the view that it could never have been the intention of the legislature to take away or cut down the right of review conceded by it to an aggrieved party, it may be pointed out that the Code itself contemplates circumstances in which a review application may be prosecuted even after an appeal has been finally disposed of. For under Order 47, Rule 1(2), Civil P.C., it is open to a party who is not appealing from a decree or order to 3 apply, under certain circumstances, for a review of judgment, notwithstanding the pendency of an appeal by some other party.
47. The grounds on which a review may be granted are both more restricted and somewhat different from those on which an appeal may be allowed. It may be helpful to institute a comparison of Order 47, Rule 1 With Order 41, Rule 27. Order 47, Rule 1(1) runs as follows:
Any person considering himself aggrieved-
(a) by a decree or order from which 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 allow such evidence or document to be produced, or witness to be examined.
(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.
I am not taking into consideration the amendment of Clause (b) made by the Allahabad High Court on 31-7-1943. This subsequent amendment does not affect the argument in any way. It will be noticed that in the case of an appeal it is only in those cases where the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or 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,' that additional evidence can be allowed. In the case of a review, the vital consideration is the discovery of new and important evidence which was not within the knowledge of the party when the decree was made.
48. In Kessawji Issur v. G.I.P. Rly. ('07) 31 Bom. 381 where some additional evidence had been admitted by the High Court of Bombay in appeal, Lord Robertson, who delivered the judgment of the Board, observed that:
The legitimate occasion for Section 568 (which corresponds with Order 41, Rule 27 of the present Code) is, when on examining the evidence as it stands, some inherent lacuna or defect becomes apparent, and not where a discovery is made outside the Court of fresh evidence and the application is made to import it. That is the subject of separate enactment in Section 623.
The point that I am driving at is that the requirements for granting an application for additional evidence in review are not the same &B; those on which it may be allowed in an appeal. There are certain situations for which a review is a more appropriate remedy than appeal. Additional evidence in appeal cannot be allowed foe the purpose of enabling a plaintiff to make out a new case. If the evidence on which the aggrieved party is relying was one which he was in a position to tender in the Court below and did not tender it, he would not be allowed to produce it in appeal, say, on the ground that omission on his part to do so was due to ignorance of law : vide Bombay Sizing Stores Supplying Co. v. Kusumgar & Co. 11 A.I.R. 1924 Bom. 227.
49. In Radha Kishun v. Khurshed Hussein 7 A.I.R. 1920 P.C. 81 the Judicial Committee did 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 Court does not possess the power in second appeals to send back a case for a revised finding on the facts on evidence already recorded. While a party aggrieved by a judgment or decree in a case in which a second appeal lies to this Court can have that judgments or decree reversed by this Court on the plea that the law has not been correctly applied by the lower appellate Court to the facts found, ha would seem to have no right in second appeal to claim a re-hearing of the suit on questions of fact on the ground that since the decree of the original Court was passed he had come into pos-session, of some new matter which, with all the diligence that he could display, was not available to him at the time the decree had come to-be passed and should be looked into by the Court for doing justice between the parties. Foe a person in that position, the right of review is a valuable right as he can go to the Court upon the basis of whose findings this Court applies the law to his case to review its former decision on the ground that some new and important matter which was unknown to him, without any negligence on his part, at the time the decree was passed had come to his knowledge and had put a different complexion on the case. The fact must be remembered that review jurisdiction had its origin in Courts of equity in England which, upon being satisfied that new matter had come to the knowledge of the applicant and his agents at a time when he could not have made use of it in the action, that it could not by reasonable diligence have been discovered sooner and that it was of such a character that, if brought forward in the action, it would probably have altered the judgment, used to allow what was 'virtually a re-hearing of the case. This jurisdiction of the Court of Chancery to entertain an action in the nature of a bill of review has remained unaffected by the Judicature Act. Indeed in Falcke v. Scottish Imperial Insurance Co. (1888) 57 L.T. 39 it was observed by Kay J. that:
The old jurisdiction of the Court of Chancery to entertain an action in the nature of a bill of review had remained unaffected by the Judicature Act with some procedural difference and that the grounds for obtaining the leave for review were the same as they had been before the Act.
And it was further laid down by him that:
An application to institute an action in the nature of a bill of 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. The judgment of Sir Section Subrahmania Ayyar, Offg. C.J. and Benson J. in 27 Mad. 6021 proceeds upon the principle that:
When an appeal has been duly filed the lower Court has, pending the decision of the appeal, no jurisdiction over the cause and can, as a rule, pass no order therein.
It may, however, be pointed put that under Order 47, Rule 1(2), Civil P.C., it is competent for a review application to proceed, under certain circumstances, even after an appeal has been subsequently preferred. Is there any reason, therefore, to assume that the legislature did not intend that an application for review presented before the filing of the appeal should not be heard by the Court to which such application is addressed? I propose briefly to consider the position relating to appeals for the purpose of determining whether there are any exceptions to the rule that once an appeal is preferred from a decree, it is the appellate Court and appellate Court alone that is seized of the matter. The rule that after the preferment of an appeal, the appellate Court comes to be seized of the matter completely would not seem to be of universal application. It may, for example, be pointed out that Order 41, Rule 5 makes it clear that the filing of an appeal does not operate as a stay of execution, that the Court of first instance retains jurisdiction to execute its decree in spite of the fact that an appeal has been filed and that the power to execute a decree can be taken away only after communication to it of the order of the appellate Court. Section 107 of the Code lays down that the appellate Court shall have, subject to such conditions and limitations as may be prescribed, the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by the Code on Courts of original jurisdiction in respect of suits instituted therein. On the basis of this section, it cannot be assumed as a matter of course that after an appeal has been preferred in an appellate Court, the Court from whose decree the appeal was preferred has no jurisdiction to deal with any matter connected with the subject-matter of the suit. Order 47, Rule 1(2) makes it clear that the 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 except where the ground of such appeal is common to the 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 the suits.
55. The inevitable inference to be drawn from these provisions would not, particularly in view of the provisions of Order 47, Rule 1(2), appear to be that after the filing of the appeal the previously presented review application would be incompetent. Had that been the intention of the legislature, there would have been an express provision to that effect. If it is open to the Court to hear a review application on grounds. such as are contemplated under Order 47, Rule 1(2), why must it be assumed that it is not open to the Court to hear a review application filed previous to the presentation of an appeal? By way of answer to the reasoning which had appealed to the learned Judges who decided the case in Ramanadhan Chetti v. Narayanan ('04) 27 Mad. 602, Wallis J. in delivering the judgment of the Full Bench in Chemma Reddi v. Peddabi Reddi ('09) 32 Mad. 416 observed as follows:
The decision in Ramanandhan Chetti v. Narayanan Chetti ('04) 27 Mad. 602 is based on the proposition that on the filing of an appeal the further litigation and all matters connected therewith are transferred to and placed under the control of the appellate Court, and in support of this proposition certain American decisions are referred to. Now, after an appeal has been filed, the appellate Court is seized of the case and should no doubt be applied to rather than the Court of first instance unless the law expressly enjoins the contrary, as was held in 18 Mad. 214,6 but it is a very different thing to press this principle so far as to say that the act of a party in filing an appeal deprives the Court of first instance of power to dispose of an application which has been properly made to it in the exercise of its jurisdiction. Such a notion would never, I think, have occurred to the framers of the Code.
56. I am in full agreement with these observations The result is that there being no necessary implication, I do not see how we can lay down that by subsequently presenting an appeal after the review application was filed, the aggrieved party made the review application incompetent.
57. For the reasons which I have indicated, I would answer the question referred to this Full Bench in the negative. I am not sure, however, whether the point referred to us does in fact arise in the case for what the applicant has done so far is merely to present an application for a certificate that the case is a fit one for appeal to His Majesty in Council. It is doubtful if such an application can be regarded as an appeal.
58. The question referred to the Full Bench is answered in the negative.