Charles Sargent, Kt., C.J.
1. The only question which we have to consider is whether we should allow the appellant to withdraw this second appeal, in order that he may apply to the lower Court for a review of judgment, on the ground of the discovery of new evidence.
2. We should feel more difficulty in coming to the conclusion that the Civil Procedure Code sanctions this course, if it were not for the decisions of this Court in Nanabhai v. Nathabhai 9 Bom. H.C. R 89 and in Narayan v. Davudbhai 9 Bom. H.C. R 238. These decisions have been followed by a uniform practice in accordance with them, and this practice ought not, we think, to be lightly disturbed, more especially as it was established to prevent obvious hardship and injustice. It is true that there is a slight difference in the wording of the old law as contained in Section 376 of Act VIII of 1859 and in that of Section 623 of Act X of 1877. The former section allowed a person to apply for a review of a decree of a District Court in appeal, from which no special appeal had been admitted by the Sadar Court. The later Act provides generally for the review of decrees from which no appeal has been preferred. But we do not see that this slight difference of language has any important bearing upon the question. If the Full Bench in Nanabhai v. Nathabhai 9 Bom. H.C. R. 89 was justified in holding that the effect of allowing a special appellant to withdraw his second appeal was to treat it as having never been admitted, it is not going further to say that by the same process an appeal may be treated as having never been preferred. 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 n6thing 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.
3. We have had some doubts whether the evidence, which the appellant in this case claims to have discovered, is of sufficient weight to justify us in giving the appellant an opportunity of applying for a review. But, on the whole, we think that he is entitled to the benefit of the District Court's opinion upon this point.
4. We, accordingly, permit the withdrawal of this appeal. The appellant must pay the respondents' costs of appeal.