W. Comer Petheram, C.J. and Rampini, J.
1. This is an appeal under Section 15 of the Letters Patent from an order of Mr. Justice Beverley, making a rule absolute to re-hear an appeal.
2. The case was originally a second appeal to this Court, which was heard by a Bench of this Court consisting of Mr. Justice Wilson and Mr. Justice Beverley. The second appeal was decided on the 1st June 1888, and it was decided in favour of the defendant; and the plaintiff, being dissatisfied with that decision, was desirous of having it reviewed, and, accordingly, on the 24th July 1888, an application for review bearing the proper stamp was filed with the Deputy Registrar of this Court. Section 623* of the Code of Civil Procedure provides that such an application shall come before the Judge or Judges who were parties to the original decree. Those Judges, as I said just now, were Mr. Justice Wilson and Mr. Justice Beverley. Various reasons prevented them from sitting together until the month of March 1889, and, on the 6th of that month, the matter was presented before those learned Judges, and upon its being so presented, they issued a rule calling upon the other side to show cause why the application should not be granted. The practice is, that such applications should be presented in this way, and if the Judges, before whom,the application is made, think there is anything in it, they grant a rule calling upon the other side to show cause against it; and the whole of these proceedings, the granting a rule and the argument of the rule when it is returned, are treated within the meaning of Chap. XLVII of the Code of Civil Procedure as being an entire application.
3. That being the state of things and the rule having been granted and made returnable on the 23th March, Mr. Justice Wilson took furlough and left before the 28th March, at any rate he was absent from Court on the 7th; so that when the rule was returned, one of the Judges had gone, and inasmuch as he was absent on furlough and another Judge appointed to officiate for him, we think he was not then attached to the Court within the meaning of Section 627 of the Code.
4. Then the question arises, what is to be done? The rule being returnable on the 28th, was heard by Mr. Justice BEVERLEY alone. The present contention of the appellant is that that procedure was wrong, and either the matter ought to have stood over until Mr. Justice Wilson returned, or else that an application ought to have been made to me as Chief Justice to appoint another Judge to sit with Mr. Justice Beverley to form a Bench to hear it.
5. I do not think that it could be necessary for the matter to stand over, and I do not think that, if an application had been made to me, I should have had jurisdiction to hear it, and for this reason. The latter part of Section 627 of the Code provides that no other Judge or Judges of the Court, excepting the Judge or Judges who was or were parties to the original judgment, shall hear the application for review if the Judge or Judges or any one of them is still attached to the Court; so that it seems to me that although the Chief Justice of this Court has in general the duty cast upon him of appointing the Judges who are to constitute particular Benches for particular business, in these cases the constitution of the Bench is taken out of his hands, and is provided for by the Code; for the Code says that these applications shall be heard by the Judge or Judges remaining attached to the Court by whom the original decree was given.
6. As I said just now, at the time this rule was returned Mr. Justice Wilson had gone away on furlough and another gentleman had been appointed to perform his duties, and, consequently, he had ceased to have any jurisdiction as a Judge of this Court for the time. He was not at the time attached to the Court, and, consequently, Mr. Justice Beverley was the only one of the Judges who heard the appeal who remained attached to the Court, and was, in my opinion, the only Judge who could be appointed to hear this application. So that in our opinion Mr. Justice Beverley was quite right in deciding that he had jurisdiction to hear the matter, and was in fact the only person who could hear it. That ground therefore fails.
7. The other point made by the appellant here is that we have jurisdiction under the Letters Patent to consider the question on the merits, whether Mr. Justice Wilson and Mr. Justice Beverley were right in granting a rule, and whether Mr. Justice Beverley was right in making it absolute; and this argument proceeds upon the ground that inasmuch as the rule was made absolute by one Judge, that is a judgment within the meaning of Section 15 of the Letters Patent, and that, notwithstanding the provisions of Section 629 of the Code of Civil Procedure, an appeal lies to this Court.
8. The first question is, whether that is a decision within the meaning of that section of the Letters Patent? la my opinion it is not, because the Courts have laid down over and over again, I think up to the Privy Council, that 'judgment' there means a judgment that decides the rights of the parties. This order of Mr. Justice Beverley, making this rule absolute, did not decide the rights of the parties in any sense. All it decided was that in his opinion the trial of the appeal had been unsatisfactory, and it would be in the interests of justice that it should be re-heard. It decides nothing more. The rights of the parties are still at large as before. In addition to that, we think that the matter is limited by the terms of Section 629. That section provides that the order rejecting the application shall be final. It then goes on to say, that an order admitting the application may be appealed against on several grounds, and it seems to us that the meaning of that is, that it may be appealed against on those grounds and no other; and that being the case, it, in our opinion, takes away an appeal in the matter, because the Code does contemplate this matter being heard under certain possibilities by one Judge and then takes away an appeal from his decision.
9. Under these circumstances it seems to me that on neither of these grounds can an appeal be entertained on the merits. The two cases in the Madras and Bombay High Courts, viz., Achaya v. Ratnavelu I.L.R. 9 Mad. 253 and Bombay-Persia Steam Navigation Company v. The Zuari I.L.R. 12 Bom. 171, take the same view of the matter, and as to those decisions it is sufficient for us to say that we entirely agree with them. In the result this appeal will be dismissed with costs.
*Application for review for judgment.
[Section 623: Any person considering himself aggrieved-
(a) by a decree or order from which an appeal is hereby allowed, but from which no appeal has been preferred;
(b) by a decree or order from which no appeal is hereby allowed; or
(c) by a judgment on a reference from a Court of Small Causes,
and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order, or to the Court, if any, to which the business of the former Court has been transferred.
Aparty who is not appealing from a decree may apply for a review of judgment not withstanding the pendency of an appeal by some other party, except when the ground of such appeal is common to the applicant and the appellant, or when, being a respondent, he can present to the appellate Court the case on which he applies for the review.]