Lawrence Jenkins, K.C.I.E., C.J.
1. This is an application to the High Court under Section 622 of the Code of Civil Procedure.
2. The petitioners' complaint is that the lower Court has wrongly rejected an application made by them for a review of judgment under Section 623 of the Code of Civil Procedure.
3. The ground on which the lower Court rejected that
application, was that an appeal had been preferred.
4. To this it is answered that the appeal was dismissed under a. 551.
5. It appears to us that it was none the less preferred on that account. Indeed it was only because it was preferred that it was dismissed.
6. Then Mr. Patkar has contended that the line of decisions commencing with Nanabhai Vallabhdas v. Nathabhai Haribhai(1872) 9 Bom. H.C. A.C.J. 89 and going up to Pandu v. Devji ILR (1883) 7 Bom. 287 assists him.
7. Those cases decide that, where there has been an appeal, there still may be a review of the judgment of the Court against whose decree the appeal was preferred, provided the appeal to the higher Court is withdrawn.
8. Nanabhai v. Nathabhai was a decision under Act VIII of 1859. By Section 376 of that Act it was provided that any person, considering himself aggrieved by a decree of a Court of original jurisdiction, from which no appeal shall have been preferred to a superior Court, or by a decree of a District Court in appeal from which no special appeal shall have been admitted by the Sadder Court, may, under the circumstances there indicated, apply for a review of judgment by the Court which passed the decree.
9. A request was made to admit a review of judgment passed in special appeal on the ground that new evidence had been discovered since the special appeal had been decided.
10. That matter was referred to a Pull Bench, and in course of his judgment Sir Michael Westropp after indicating that the proper course was to permit the appellant to withdraw his appeal, and thus to treat it as never having been admitted says that ' on granting the permission to withdraw the special appeal, the Court might direct that the order, by which the special appeal had been admitted, should be cancelled.'
11. In the same volume of the Bombay High Court Report (i.e., 9 Bom. H.C.R.), at page 238, is the case of Narayan v. Davudbhai, before Sir Charles Sargent and Mr. Justice Melvill after referring to the decision in Nanabhai v. Nathabhai and in particular tothe passage' which we have quoted they say : ' It appears to us that the proper course is that indicated in the words above quoted' ; and then they go on to say, ' If the order for admission be annulled, it is as if the order had never been made.'
12.Then we come to the decision in Pandu v. Devji ILR (1883) 7 Bom. 287 when Act X of 1877 was the Civil Procedure Code then in force. Its language resembles that of the present Code, for, by Section 623 of that Act, it is provided that' any person considering himself aggrieved by a decree or order, but from which no appeal has been preferred, may apply for a review of judgment.'
13. It is to be noticed that the language has been altered. There are no longer the words 'from which no special appeal shall have been admitted,' but there are the words ' in which no appeal shall have been preferred.' There is undoubtedly a considerable difference between the two phrases ; an admission is made by the Court, the preferring of an appeal is by the party. Still the learned Judges in Pandu v. Devji held that notwithstanding this change of language it was still open to a person aggrieved, after a special appeal had been preferred to the High Court, to apply for a review provided that his appeal to the High Court was withdrawn. After referring to Nanabhai v. Nathabhai (1872) 9 Bom. H. C. A.C.J. 89 the learned Judges say 'it is not going further to say that by the same process an appeal may be treated as having never been preferred.' It is obvious, therefore, that the learned Judges considered that it was important to establish that either in fact or in fiction no appeal had been preferred, and their reasoning is that as the cancellation of the order for admission it was to be taken that no appeal had been admitted, so by a withdrawal of the appeal it must be treated as though no appeal had been preferred.
14. But if we accept, as we are bound to accept, this process of reasoning which has now become part of the established practice of the Court, can we say, when the Court has actually dismissed the appeal, that the appeal has not been preferred.
15. For cur own part we see no legitimate mode of reasoning by which we can come to that result.
16. The appeal in fact was preferred, and in our opinion nothing has happened to justify us in saying that it can now be regarded as not having been preferred.
17. Therefore, we are of opinion that there was no error, within the meaning of Section 622, committed by the Judge of the lower Court and we must, therefore, discharge this rule with costs.