1. Mr. Subramania Aiyar has taken the preliminary objection that the High Court cannot entertain a review in appeals preferred under Section 15 of the Letters Patent. The question is practically res integrals the decision in Hafiz Muhammed Moshin v. Sheo Prasad (1904) 1 A.L.J. 509 in which the point was directly raised gives no reason for the conclusion arrived at.
2. After hearing the matter fully argued by the learned Vakils on either side, we are of opinion that there is no force in the objection : Section 44 of the Letters Patent says that the provisions are subject to the Legislative powers of the Governor-General in Council. As at present advised we are in agreement with Mr. Subramania Aiyar that this provision would not enable courts, by implication, to supplement the Letters Patent by importing into them all acts, ejusdem generis, passed by the Governor-General in Council and that the provision is only intended to empower the Governor-General in Council to legislate with a view to supplement omissions in the Letters Patent. Even in this view, we think that by Section 117 of the Code of Civil Procedure (Act V of 1908) the Governor-General in Council did incorporate into the Letters Patent the provisions relating to review. It was then argued that the review Section 114 of the Code (Act V of 1908) cannot apply as it provides only for the review of decrees or orders passed under the Code of Civil Procedure. We are not impressed by this argument. In the first place, decrees are passed in appeals heard under the Letters Patent only under the Code of Civil Procedure. In the second place Clause (B) of Section 114 does not require that orders and decrees should have been passed under the Code. Further the word decree or order includes a Judgment. Krishnan Dayal v. Irshad Ali (1915) 22 C.L.J. 525. Mr. Subramania Aiyar relies on Sabapathi Chetty v. Narayanaswamy Ghetty I.L.R. (1901) M. 555 for the proposition that Section 15 of the Letters Patent is not controlled by the Code of Civil Procedure. All that was decided in that case was that as Section 15 had given an unlimited power of appeal against every Judgment of a single Judge, the Governor-General in Council should not be understood to have taken away by implication that power of the litigant by making Section 540 of the Code (Act XIV of 1882) applicable to chartered High Courts. This does not contravene the principle that it is competent to the Governor-General in Council to supplement the remedy of appeal by giving an additional remedy by way of review to the litigant.
3. The decisions in Babaji Bin Patloji v. Babaji Bin Mahadu I.L.R. (1819) B. 650 Lala Prayag Lal v. Jai Narain Singh I.L.R. (1895) C. 419 and Nana Bin Aba v. Sheku Bin Andu I.L.R. (1908) B. 337 only lay down that a self-contained-act should not be added to by the provisions of the Code of Civil Procedure. This does not affect the present question.
4. Mr. Ramachandra Aiyar has referred us to two reported cases and to an unreported decision in which reviews under similar circumstances were entertained. Apparently the practice of this High Court has been in favour of allowing reviews to be filed in appeals under the Letters Patent.
5. It was pointed out by the Judicial Committee in Ravi Veeraragavelu v. Venkatanarasimha Naidu Bahadur 27 M.L.J. 451 that even though a strict construction of the law may not permit of the entertainment of appeals, a long standing practice of the court should not be lightly departed from in that respect. What relates to appeals applies mutatis mutandis to reviews also. We must therefore overrule the preliminary objection.
6. If we are to interfere in review in these cases, it can only be by upsetting conclusions of fact at which the learned Judges who heard the appeal arrived. We are not prepared to adopt this procedure.
7. The petitions are dismissed with costs.