1. This is an application for review of the order of dismissal under Order XLI, Rule 11, Civil Procedure Code, by Mr. Justice Crump, of Second Appeal 459 of 1927, on September 17, 1927, preferred by the petitioner, original defendant No. 4, Hari Ganu Bhandirge.
2. The contest in the original suit was as regards the property of one Mukundji. The petitioner claimed to be the daughter's son and heir of Mukundji The plaintiffs Nos. 1 and 2 opponents claimed to be the nearest reversioners. The plaintiffs succeeded in both the lower Courts. Bach party set up a different genealogy. The plaintiffs' genealogy was accepted in both the lower Courts and they succeeded. The defendants' appeal to this Court was dismissed under Order XLI, Rule 11, Civil Procedure Code. The present application purports to be made under Order XLVII, Rule 1, Civil Procedure Code, on the ground stated in para, 7 of the petition that one Raghunath Moreshwar Kulkarni banded over about December 16, 1927, a third genealogy, which was a new and important matter, which he could not, by the exercise of ordinary diligence, have produced in proper time, Accordingly, I am asked to review the order of Mr. Justice Crump.
3. A preliminary objection is taken for the plaintiffs-Opponents that such an application for review does not lie. It is argued for the opponents that on the consistent practice of this Court is enunciated by this High Court from 1872 in Nanabhai Vallabh das v. Nathabhai Haribhai (1872) 9 B.H.C.R. 89 down to Shivappa v. Ramchandra I.L.R.(1921) 46 Bom. 1and the decision of Mr. Justice Fawcett in Narhar Venktji Rajadhyakaha v. Raghunath Ramchandra (1927) Civil Appln. No. 630 of 1924, decided by Fawcett J. on February 28, 1927, no such application can be entertained. For the petitioner reliance is placed on the observations of Shah J. in Shivappa v. Ramchandra I.L.R(1921) . Bom. 1 and on the indulgence granted to the petitioner in oases such as Narayan bin Sidoji v. Davudbhai valad Fatebhai (1872) 9 B.H.C.R. 238 where although his appeal in this Court had been admitted, he was allowed to withdraw it in order to prefer an application for review in the District Court.
4. The objection for the opponents must, in my opinion, succeed. The only section under which such an application for review would lie, is Order XLVII, Rule 1, Civil Procedure Code, and that section can only apply if 'no appeal has been preferred.' It may be that when the appeal has been preferred and even if it has been admitted and is allowed to be withdrawn as in Narayan v. Davudbhai, the applicant may be in the same legal position as though no appeal has been preferred. Even so, this view can only be sustained on an exceedingly liberal interpretion of the words of the enactment. But I am unable to see, when an appeal has not only been preferred but has also been disposed of, whether it has been dismissed or allowed, how the appellant, by any procedure known to law, can be placed in the position as though 'no appeal has been preferred.' The difficulty in fact has been pointed out by Sir Lawrence Jenkins C.J. in Ramappa v. Bharma I.L.R(1906) . 30 Bom. 625. This initial difficulty in the petitioner's case would of itself. I think, suffice.
5. Moreover, there is the difficulty created by Section 100, Civil Procedure Code. The decision of the District Court on a question of fact is final and the alleged evidence would clearly affect the issue of fact. Such a discovery, whatever ground it might furnish for review of the decree of the District Court, cannot be a ground for review of the decree of this Court. It is on this ground that all the High Courts have declined to entertain an application for review of this character. I have already referred to the Bombay decisions. The other decisions are to be found in Jakammal v. Palneappa Chetty (1870) 5 M.H.C.R. 464 ; Raru Kutti v. Mamad I.L.R(1895). Mad. 480; The sectary of State for India v. Manjjeshwar Krishnaya I.L.R. (1904) Mad. 415 ; In the matter of the petition of Nand Kishore I.L.R(1909) . All. 71; Mariam-un- nissa Bibi v. Babu Ram I.L.R. (1923) All. 458; Rajani Kanta Das v. Kali Prasanna Mukherjee I.L.R(1914) . Cal. 809 . In regard to the observations of Shah J. in Shhappa v. Ramchandra, the decision itself shows that the learned Judge did not differ from the conclusion of Macleod C.J. following the cases cited above, and declined to grant the review applied for.
6. Thirdly, and lastly, I might add that on the petitioner's own showing it appears that this evidence existed in his own village of Jamb with the Kulkarni and was as easily available during the suit as it now purports to be. It does not, therefore, comply with the requirements even of Order XLVI1, Rule 1.
7. For all these reasons the application fails and must be dismissed with costs.