1. This is an application for a review of the decree which was passed in Appeal No. 22 of 1921 by Mr. Justice Kemp and myself on July 20, 1923. The suit was filed on January 21, 1918, and the trial Court passed a decree on December 16, 1920. From that decree there was an appeal by the defendants and that is the appeal which we decided on July 20, 1923. Thereafter the defendants presented a petition for leave to appeal to His Majesty in Council on January 17, 1924. On February 27, the appeal was declared admitted. Ultimately, however, the appeal was dismissed for want of prosecution on December 1, 1924, by the Court of Appeal here under Clause 12 of Rule 785 A of this Court which is in terms of the Order of His Majesty in Council regulating the practice in appeals to His Majesty in Council. The defendants applied for review of this order dismissing the appeal on December 18, 1924. That application was disallowed on January 26, 1925. The defendants made an application to His Majesty in Council which was dismissed on April 28, 1925.
2. The present application for review was made on July 24, 1925, and it is based upon the allegation that the defendants discovered a new document purporting to be the will of the late Motishaw. They discovered it by mere chance according to them on July 7, 1925. In the petition it is stated as follows ;-'The applicants submit that no amount of due diligence on their part would have resulted in the discovery of this document which has come to be known by a mere stroke of chance. This document is nearly ninety years' old, i. e., must have been in existence fifty years before any of the applicants came into existence. It was practically known among the Jains at large that Motishaw died intestate and the various accounts of his life published that Motishaw died intestate.'
3. No affidavit is filed in support of these statements in the petition : and there is no proof that the applicants could not have discovered this document while the suit was going on if they had exercised due diligence and had made a reasonable search for it. On the application for review a rule was issued by this Court to show cause why the delay in presenting this application for review should not be condoned under Section 5 of the Indian Limitation Act. In showing cause against this rule the original plaintiffs urge two objections against the application : (1) that in view of the facts that the defendants preferred an appeal to the Privy Council this review is not competent having regard to the provisions of Section 114, Clause (a), of the Code of Civil Procedure ; and (2) that no good reason is shown why the delay should be excused.
4. As regards the first objection Mr. Mulla, who has appeared in support of the rule on behalf of the defendants, contends that the provisions of the Code contained in Section 114 and the rules in Order XLVII would not apply to a review in appeals preferred under the Letters Patent. He has, however, fairly drawn my attention to the case of Venkatasubbarayadu v. Sri Rajah Krishna Yachendrulu Varu Bahadur, I.L.R. (1915) Mad. 651 where it has been held that the provisions of the Code apply to review applications even in appeals under the Letters Patent. But he has not been able to advance any argument to show that the view taken by the Madras High Court is not justified by the provisions of the Letters Patent and the Civil Procedure Code. It is clear that in view of Section 117 of the Code of Civil Procedure the provisions of Section 114, and the rules under Order XLVII, would apply to an application for review of a decree in any appeal under the Letters Patent, as they would undoubtedly apply to a review in any appeal under the Code. There is no provision to the contrary under the Letters Patent, and having regard to the terms of Clause 44 of the Letters Patent, the provisions of the Code are applicable to such applications. It may be noted that the words 'by the Code' used in Section 114 (a) are not repeated in Order XLVII, Rule 1, Sub-rule (1), Clause (a). Mr. Mulla has referred me to the decision in Sabitri Thakurain v. Savi in support of his argument that even if the provisions of the Code applied under the inherent powers of this Court I should entertain this application for review without reference to the provisions of the Code. I am, however, quite unable to accept this argument because in the exercise of the inherent powers, if any, with reference to this application, it is not open to me to disregard the express provisions of the Code. In my view having regard to the facts which I have stated in this case an appeal was preferred to His Majesty in Council. The fact that it was not prosecuted cannot alter the fact that the appeal was in fact preferred : nor can it make any difference that the appeal was dismissed by the Court of appeal here for want of prosecution under the terms of the Order of His Majesty incorporated in Rule No. 785A. That being so, now it is not open to the defendants to seek a review of the decree in appeal here. It may be open to the defendants to apply for a review on the materials now relied upon in support of the present application to His Majesty in Council, but as to that I need not and do not express any opinion. I am concerned with the application made to this Court, and I am of opinion that this application is not competent in view of the fact that an appeal from the decree now sought to be reviewed was preferred by the applicants to His Majesty in Council.
5. The further objection as to the delay appears to be good. In fact no satisfactory reason is shown by the defendants why the attempt to get at the contents of the document now relied upon was not made earlier. The application is admittedly much beyond time under Article 162 of the First Schedule to the Indian Limitation Act, as only twenty days are allowed from the decree or order sought to be reviewed. Even making due allowance for the fact that after July 1923 up to April 1925 when their application to His Majesty in Council was dismissed the defendants were engaged in prosecuting another remedy with reference to the same matter, I do not think that the further delay after that is justified. In fact the ground upon which the application is based is quite independent of the time which was occupied from July 1923 up to April 1925 in prosecuting their remedy first by way of an appeal and then by way of review to get the dismissal of the appeal for want of prosecution set aside. There is no proof in this case that with due diligence the defendants could not have got the information which they say they got by mere chance on July 7, 1925, The provisions of Rule 1, Sub-rule (1) (c) read with Rule 4, Sub-rule (2) (b) clearly require that proof : and the necessity for such proof was referred to by their Lordships of the Privy Council in Hosking v. Terry. (1862) 15 M.P.C. 493 In the absence of such proof I do not think that I would be justified in excusing the delay under Section 5 of the Indian Limitation Act. I do not desire to say anything with reference to the merits of the application beyond this that the clauses in the will of Motishaw, set forth in the petition (and it is admitted before me that these are the only material clauses, prima facie do not suggest that the inference as to dedication to the public by Motishaw is not justified nor do they appear to conflict in any way with the conclusions based on the evidence.
6. The learned Advocate General argued on behalf of the plaintiffs that it was not competent to me sitting alone to hear this application for review. But, having regard to the provisions of Rule 5 of Order XLVII, it seems to me that it is competent to me to hear the application owing to the absence of my learned brother Kemp who is on leave. On these grounds I discharge the rule with costs.