1. This is an application to review the judgment of this Court in Second Appeal No. 968 of 1894 on the ground of the discovery of new and important evidence. It is objected that the application cannot be entertained, inasmuch as the ground relied upon in the application for review could not be successfully relied on in the second appeal itself Jackammal v. Palneappa Chetti 5 M.H.C.R. 464.
2. That decision was passed in 1870 under the old Procedure Code VIII of 1859, but the High Court of Calcutta took the same view and on the same grounds. See Bhyrub Nath Toee v. Kally Chunder Chowdhry 16 W.R. 112; Panchanan Mookerjee v. Radha Nath Mookerjee 4 B.L.R. App. Cases 213 also Ex parte Bashyagarlu Nayudu 1 M.H.C.R. 254.
3. The decision in Pandu v. Devji I.L.R. 7 Bom. 287 was passed under the Procedure Code of 1877 which is identical with the present Code. It was pointed out that Section 3761of Act VIII of 1859 was practically similar to the present Section 623; but, as the second appeal was pending and had not been decided, the Court permitted it to be withdrawn in order that application might be made to the lower Appellate Court for a review founded on the discovery of the new evidence.
4. But in this case the second appeal has been heard and decided, and we can no longer permit the appeal to be withdrawn. Nor could we in second appeal admit evidence of fact which was not before the lower Appellate Court; whether it would be still open to the petitioner now to move the lower Appellate Court to admit the new evidence is not a point which it is necessary for us here to decide.
5. We see no ground to question the correctness of the decisions quoted above which appear to us to be based on sound reason and good law.
6. The other grounds put forward appear to relate to matters already decided in the appeal. We must dismiss the petition with costs.
[Section.376: Any person considering himself aggrieved by a decree of a court of original
jurisdiction, from which no appeal shall have been preferred to
Review of judgment a superior court--or by a decree of a District Court in appeal,
from which no special appeal shall have been admitted by the
Sudder court--or by a decree of the sudder court from which either no appeal may have
been preferred to her majesty in council--or an appeal having been preferred, no proceedings
in the suit have been transmitted to Her majesty in council--
On discovery of new and who from the discovery of new matter or evidence which
evidence & c. was not within his knowledge, or could not be adduced by him
at the time when such decree was passed, or from any other good
and sufficient reason, may be desirous of obtaining a review of the judgment passed against
him--may apply for a review of judgment by the court which passed the decree.]