1. This reference raises the question whether when an application for review of judgment has been made prior to the filing of an appeal and an appeal is filed subsequently the Court is precluded from proceeding to hear the application for review as held in Ramanadhan Chetti v. Narayanan Chetty 27 M.k 602 Section 623 Civil Procedure Code provides for making an application for review before an appeal has been filed, and Sections 624 to 630 provide that the Court is either to reject the application or to grant it and rehear the case. The legislature has thus conferred upon the party a right to apply for review and upon the Court jurisdiction to entertain the application and has directed how it shall be dealt with. When a right and a jurisdiction are conferred expressly by statute in this way it appears to me that they cannot be taken away or cut down except by express words or necessary implication. There are no express words and the question, therefore, is, is there any necessary implication? No such implication arises from the terms of Section 623 itself which provides by way of exception that in certain cases an application-for review may be made even after an appeal has been filed and if the Court can proceed to hear such an application why not also an application made before the filing of an appeal? No such necessary implication arises, in my opinion, from the other provisions of the Code such as Section 545 which provides that the filing of an appeal shall not operate as a stay of execution or Section 550 which provides for the transmission of papers to the appellate Court, or from Section 582 which provides that the appellate Court in appeals shall have the same power and, as near as may be, perform the same duties as are conferred or imposed by the Code on Courts of original jurisdiction in respect of suits instituted under the Code, because it does not seem to me to follow necessarily from those provisions that a Court is precluded from proceeding to dispose of an application for review properly filed before it, owing to an appeal having been filed subsequently. The decision in Ramanadhan Chetti v. Narayanan Chetty 27 M.k 602 is based on the proposition that on the filing of an appeal the further litigation and all matters connected therewith are transferred to and placed under the control of the appellate Court, and in support of this proposition certain American decisions are referred to. Now after an appeal has been filed the appellate Court is seized of the case and should no doubt be applied to rather than the Court of First instance unless the law expressly enjoins the contrary, as was held in Pichuvayyangar v. Seshayyangar 18 M.h 214 but it is a very different thing to press this principle so far as to say that the act of a party in filing an appeal deprives the Court of first instance of power to dispose of an application which has been properly made to it, in the exercise of its jurisdiction. Such a notion would never, I think, have occurred to the framers of the Code. They were English lawyer, engaged in conferring upon Indian Courts subject no doubt, to modifications and restrictions jurisdiction to grant relief by way of review of judgment similar to that which had been exercised by Courts of Equity in England and by the Supreme Courts in the exercise of their equitable jurisdiction. It is only necessary to refer to what is said in Mitford's Pleadings in Chancery 5th Edition, page 101 on bills of review or to the observations of Cozens Hardy, L. J. in Bright v. Sellar (1901) 1 K.B. 6 : 89 L.T. 431 : 20 T.L.R. 12 to see that Section 623 contains an adaptation of the practice as to bills of review in equity. Not only is there no warrant for the notion that the filing of an appeal deprived the Court of jurisdiction to proceed further with a bill of review but it was even held that a bill of review might be filed after the affir-mance of the decree by the appellate Court, Mitford page 105. If the framers of the Code had intended to introduce any such rule, I think they would have said expressly not only that application for review should not ordinarily be made after the filing of an appeal, but also that the filing of an appeal should determine the jurisdiction to dispose of applications made before the filing of the appeal. On the whole it seems to me impossible to hold that there is any necessary implication that the filing of an appeal operates as a stay of proceedings on an application for review especially as Section 623 itself provides for making certain applications for review even after the filing of an appeal. If there is no necessary implication we cannot hold that the Court is precluded from proceeding with the review merely on the ground that it might be convenient so to hold. Now as to authority it was held by Sir Barnes Peacock and a Full Bench of the Calcutta High Court under Section 376 of the Code of 1859 to be clear that if a review be applied for in proper time and before an appeal has been preferred, the Judge is not prevented from proceeding upon the application for review by the subsequent presentation of an appeal and he has full power and is bound to proceed under the application for review.' It is true that in that case the appeal had been withdrawn before the review was disposed of but the Court did not chose to rely on that ground, but preferred to lay down in the terms already quoted the general proposition that the review proceedings were not affected by the subsequent filing of the appeal. The proposition there laid down does not appear to have been questioned until Ramanadhan Chetti v. Narayanan Chatty 27 M.k 602. The Allahabad High Court in Kanhiya Lal v. Baldeo Prasad 28 A.p 240 assumed that a review could go on after the filing of an appeal, and held that where the review succeeded and a new decree was framed the decree under appeal was superseded and the appeal could not be heard. As regards the observations of the Privy Council in In the matter of Candas Sarrondas Navivahu v. C.A. Turner 13 B.K 520 there is I think no ground far holding that these observations were made with reference to Section 623, Civil Procedure Code, as there is nothing to show that any application had been made for review or that such application was made prior to the filing of the appeal. We have also been referred to Sankara Bhatta v. Subraya Bhatta 30 M.K 538 to which I was a party, in which the principle laid down in Ramanadhan Chetti v. Narayanan Chetty 27 M.K 602 was applied to an application under Section 108, Civil Procedure Code, but no question arose or was considered in that case as to the present point
2. In answer to the questions referred to us I am of opinion that Ramanadhan Chetti v. Narayanan Chetty 27 M.K 602 was wrongly decided and that where an application for review is presented by a party and an appeal is afterwards preferred the Court to which the application for review was made is not thereby deprived of jurisdiction to entertain the application. Those are the only questions referred to us and I need not consider how far in disposing of the application the Court may take into account if brought to its notice the fact that an appeal has been filed, but I am inclined to think that in such a case the observations of Cotton L. J. in ex-parte Banco De Portugal 14 Ch. D.1 I may be applicable and that the jurisdiction ought to be exercised with the greatest care and only in a very strong case.
3. I am of the same opinion.
Sankaran Nair, J.
4. I agree.