P L D 1960 Dacca 656 (PLP)

"Application for review of judgment‑-- (1) 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 ; (b) by a decree or 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."

8. Now, here is a case where a review was sought for from the decree of the learned Munsif when an appeal could have been preferred, and actually an appeal was preferred, but it was dismissed on the ground of limitation. So, on the date when the application for review was filed, an appeal was pending. It may be that subsequently the appeal was dismissed, but that would not make the application for review maintainable by itself. This view is clearly supported by the decision relied on by the learned Subordinate Judge. At pages 42 and 43 (A I R 1945 Bom. 40), Sen, J, observed‑as follows: "In at least two cases, therefore, this Court has refused to extend the fiction adopted in I L R 7 Bom. .287 of treating the withdrawal of an appeal as equivalent to its never having been preferred. In the present case, Mr. Chitale invites me to extend the said fiction by treating the appeal dismissed on the ground of limitation as an appeal not preferred. He has further argued that when the intending appellant sought to prefer an appeal after the period of limitation therefore had expired, he had to make an application in the first instance for excuse of the delay, and that, if that application was not granted, it ought to be held that the intending appellant was not enabled to prefer his appeal at all, so that there could be no question of the preferring of an appeal in such an event. Besides, he has pointed out that in I L R 7 Bom. 287, Sargent, C. J. had observed (p. 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'." His contention is that the application for excuse of the delay in preferring an appeal not having been granted, it cannot be said that the party applying for review was availing himself of two remedies at one and the same time. Lastly, he has relied on the dictum of Barlee, J. in 33 Bom. L. R. 378 (382): "When there is no appeal on record he is entitled to the benefit of a fiction that none has been preferred."

9. The argument is that where the application for the excuse of delay has not been granted it would be correct to say that there is no appeal on record, so that in the present case the appeal not having been admitted to the file of the Court, there should be no bar under Order XLVII, rule

1. According to Mr. Chitale, before the appeal is admitted to the file, it is only the memorandum of appeal that is presented to the Court, and it is strictly inaccurate to speak of the presentation of the memorandum of appeal as the preferring of an appeal. I am unable to accept these arguments. Order XLI, rule 1, shows how an appeal is to be preferred: "(1) Every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and present ed to the Court or to such officer as it appoints in this behalf. The memorandum shall be accompanied by a copy of the decree appealed from, and (unless the Appellate Court dispenses therewith) of the judgment on which it is founded." It is undeniable that in this case all the steps prescribed by this rule had been taken. There cannot be any doubt, therefore, that within the meaning of this rule the appeal had been duly preferred. Under section 3, Limitation Act : "Subject to the provisions contained in sections 4 to 25 (inclusive), every suit instituted, appeal preferred, and appli cation made, after the period of limitation prescribed therefore by the first Schedule shall be dismissed, although limitation has not been set up as a defence." It seems to me that the order on the appeal in this case must, therefore, he construed as a dismissal, and, if that be so, it will be difficult to distinguish this case from I L R 30 Bom. 625 in principle. It is not possible in my judgment to place dismissal of an appeal under section 3, Limitation Act, on the same footing as its withdrawal. Order XLVII gives a special privilege to an aggrieved litigant, and must be strictly construed. Besides, where the plain terms of an enactment do not apply, and the case law relied on is also not applicable, it is not competent to the Court to resort to what might appear to b; the intention of the Legis lature in order to interpret, such terms: If it be permissible to speculate on the ground for the provision under Order XLVII, rule 1, that one of the essential conditions roust be that no appeal shall have been preferred, it seems to me that such ground is to be found in the fact that when after an appeal has been filed any new relevant matter is subsequently discovered, the aggrieved party can avail himself of the provisions of Order XLI, rule 27, so that there would be no need for a review ; and if such matter be discovered after the appeal has been dismissed, that must be regarded as too late a stage. In this case the application for review was filed after the appeal had been filed at a time when i could not be predicted whether the application for the excuse of the delay would be granted or not. There was, therefore, clearly no jurisdiction in the Court to entertain such an application. As remarked in 33 Bom. L R 378, the question of the jurisdiction f a Court depends on the state of facts when the application was made, and not what occurs subsequently. It was obviously impossible to argue, when the review application was filed, that the application for excuse of delay was such as could not be grant ed, and that, therefore, no appeal had been preferred. It seems to me that for the purposes of Order XLVII, rule 1, no distinction can be drawn between the presenting of a memorandum of appeal and the preferring of an appeal. Beyond what has been decided in I L R 7 Bom. 287 it seems to me that the principle that where an appeal has been preferred there should be no review should not be whittled down or qualified in any way.

10. I respectfully agree with the view taken by Sen J. in that particular decision.

11. The second ground on which the application for review was rejected by the learned Subordinate Judge was that the petitioners were not at all diligent. The Court below came to the finding after consideration of the facts and circumstances of the case, and I am of opinion that this finding cannot challenged in an application under section 115 of the Code of Civil Procedure before this Court. Moreover, the Court possessed of jurisdiction may decide a matter rightly or wrongly. The Court below did not act in breach of some provisions of law or did not commit any error of procedure which materially affected the decision. So, there is no substance in the Rule.

12. The Rule is accordingly discharged with costs. K. B. A. Rule discharged.