1. We are invited in this Rule to determine, whether the Court of Appeal below had jurisdiction to entertain an application for review of a judgment passed by it. The circumstances which led to the application are not in controversy, and may be briefly recited. On the 17th July 1911, the plaintiffs instituted a suit for recovery of possession of land against five defendants, who claimed to hold it under one title. The Trial Court found in favour of the plaintiffs and decreed the suit. The five defendants appealed to the District Judge on the 8th July 1912. The appeal was heard by the Subordinate Judge, and was dismissed on the 23rd May 1913. Three of the defendants i. e., the defendants other than the first two) then preferred a second appeal to this Court on the 1st September 1913 and made respondents the plaintiff as also the defendants who had not joined them in the appeal. The appeal was summarily dismissed by this Court on the 5th December 1913 under Order XLT, Rule 11, Civil Procedure Code. The five defendants then applied to the Subordinate Judge on the 18th December 1913 to review his judgment on the ground of discovery of new and important evidence which, after the exercise of due diligence was not within their knowledge and could not be produced by them at the time when the appeal was heard. The Subordinate Judge took evidence in support of the application and ultimately granted the review on the 23rd March 1914. The plaintiffs thereupon obtained this Rule on the 15th June 1914, on the ground that after the second appeal had been dismissed by this Court, the Subordinate Judge had no jurisdiction to entertain the application for review. In our opinion this contention is well founded in respect of the three defendants, who had appealed to this Court, but must be overruled as regards the other two defendants.
2. Order XLVII, Rule 1(1) of the Civil Procedure Code, 1908, provides that any person considering himself aggrieved by a decree from which an appeal is allowed but from which no appeal has been preferred may apply for a review of judgment to the Court which passed the decree. The plaintiffs contend that in this case an appeal was preferred within the meaning of this Rule from the decree of the Subordinate Judge to this Court, and consequently the Subordinate Judge was not competent, after the dismissal of that appeal, to entertain an application for review. This argument is well founded in so far as the three defendants who had unsuccessfully appealed to this Court are concerned. But the two defendants, who had not joined in the appeal and applied for review, contend that as the appeal was preferred, not by them but by the other defendants, the Rule does not bar their application. In support of this view, they rely upon the decision in Bunkoo Lal Singh v. Basoomunissa Bibee 7 W.R. 166, which turned upon the construction of Section 376 of Act VIII of 1859; that section permitted an application for review by a person considering himself aggrieved by a decree from which no appeal had been preferred to a superior Court. Norman and Seton Karr, JJ., construed this to mean a decree, from which no appeal had been preferred by the applicant himself. This is obviously a reasonable construction, and, in our opinion, Order XLVII, Rule 1(1)(a), should be interpreted in the same manner. There is this difference, however, between the Codes of 1859 and 1908, that in the Code of 1809, there was no provision similar to what is now embodied in Order XLVII, Rule 1(2). That Sub-rule is in these terms: 'A party who is not appealing from a decree or order may apply for a review of judgment, notwithstanding the pendency of an appeal by some other party, except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court, the case on which he applies for the review' This provision was first introduced by the Legislature in Section 623 of the Civil Procedure Code of 1877; its obvious effect is to restrict the right which would otherwise be possessed by one defendant to apply for review of judgment, notwithstanding an appeal by a co-defendant. The position now is that a defendant, who has not himself appealed, may apply for a review of judgment, notwithstanding the pendency of an appeal by a co-defendant, except in two contingencies, namely, first, where the ground for review is identical with the ground for appeal, and secondly, when, as respondent in the appeal, he can present to the Appellate Court the case on which he seeks review. It is plain that the expression 'where the ground of such appeal is common to the applicant and the appellant' refers to a case where the appeal and the review are based on the same grounds, and does not contemplate a comparison between the actual appeal by the defendant and a possible hypothetical appeal by the applicant for review. There is, in our opinion, no implied reference in Order XLVII, Rule 1(2), to Order XLI, Rule 4. In the case before us, the grounds on which the appeal was preferred, were different from the ground on which the review is sought, namely, the discovery of new and important matter or evidence. Consequently the case does not fall within the exception; the grounds for the appeal and the review are distinct and the petitioners for review could not possibly present their case to the Appellate Court as respondents, as the appeal was summarily dismissed. The Court below should, in our judgment, have dismissed the application for review in so far as review was sought by the three defendants who had appealed to this Court, but the Subordinate Judge was competent to entertain and did properly entertain the application in so far as the other two defendants were concerned.
3. The question next arises, whether on the application for review made by those two defendants, the entire decree could be set aside. The answer depends upon the determination of the effect of the dismissal of the second appeal preferred to this Court by three of the defendants. The plaintiffs contend that the effect of the dismissal of the appeal was to supersede the decree of the Subordinate Judge as between the plaintiffs and the defendants, and to substitute there for the decree of dismissal made by this Court, with the inevitable result that the Subordinate Judge could not, after the dismissal of the appeal by this Court, re-open the matter in controversy between those defendants and the plaintiffs. 'We are of opinion that this argument is well founded. The effect of the disposal of an appeal upon the decree of the Primary Court was lucidly stated by Mr. Justice Dwarka Nath Mitter in Ram Charan Bysak v. Lakhi Kant Bannik 7 B.L.R. 704 at P. 714 : 16 W.R. 1 (F.B.): If the decree of the lower Court is reversed by the Appellate Court, it is absolutely dead and gone; if, on the other hand, it is affirmed by the Appellate Court, it is equally dead and gone though in a different way, namely, by being merged in the decree of the Superior Court, which takes its place for all intents and purposes; both the decrees cannot exist simultaneously.' This is in accord with the view expounded by Scctlond, C.J., in Arunachella Thudayan v. Veludayan 5 M.H.C.R. 215 and was subsequently adopted by the majority of the Full Bench in Muhammad Sulaiman Khan v. Muhammad Yar Khan 11 A. 267 (F.B.), where the observations of the Judicial Committee in Kristo Kinkur Roy v. Rajah Burrodacaunt Roy 14 M.I.A. 465 : 10 B.L.R. 101 : 17 W.R. 692 : 2 Suth P.C.J. 564 : 3 Sar. P.C.J. 62 : 20 E.R. 860 were explained. This principle has been repeatedly applied to determine the Court which can entertain an application for amendment of a decree, after an appeal from that decree has been dismissed. Sir Gobind Sing v. Gangatri Pershad Singh 6 C.L.J. 542; Kumar Rameswar Malia v. Bhaba Sundari Debi 5 Ind. Cas. 304 : 11 C.L.J. 81; Aghora Kumar Ganguli v. Mahomed Musa 5 Ind. Cas. 723 : 11 C.L.J. 155. It is also plain that the fact that an appeal has been dismissed under Section 551 of the Code of 1882 or under Order XLI, Rule 11, of the Code of 1908, makes no difference in principle, for the dismissal operates as a decree and supersedes the decree of the Court below, precisely in the same way as a decree of dismissal made after service of notice to the respondent Uma Sundari Devi v. Bindu Bashini Chowdhrani 24 C. 759; Abbas Khan v. Nibarani Dassi 5 Ind. Cas. 261 : 11 C.L.J. 159; Munisami Naidu v. Munisami Reddi 22 M. 293; Asma Bibi v. Ahmed Husain 30 A. 290 : A.W.N. (1908) 109 : 5 A.L.J. 584. On this ground it was ruled in Peary Mohan Mukerjee v. Mohendra Nath Manna 4 C.L.J. 566 and Ramappa v. Bharma 30 B. 625 : 8 Bom.L.R. 842 that when an appeal has been dismissed under Section 551 of the Code of 1882, the Court which made the decree appealed against has no jurisdiction to review its judgment or decree which had already become merged in the decree of dismissal of the Appellate Court. This view is substantially in accord with that adopted under the Code of 1859 in the cases of Lucas v. W. Stephen 9 W.R. 301 : 5 Wym. 195; Oomannnd Roy v. Maharajah Suttish Chunder Roy 9 W.R. 471; Raj Dharee Lall v. Mahadeo Singh 11 W.R. 511; Bhyrub Nath Toee v. Kally Chunder Chowdhry 16 W.R. 112; Brojonath Koondoo Chowdhry v, Jumeeroonissaee Bibee 7 W.R. 218; Parasurama Chedumbraiyan v. Kristnaiyan 5 M.H.C.R. 462, though the true principle appears to have been overlooked in Ex parte Bashiyagarulu Nayadu 1 M.H.C.R. 254. It follows accordingly that when, on the 5th December 1913, the appeal of the defendants, other than the first two, was summarily dismissed under Order XLI, Rule 11, the decree of the Subordinate Judge, in so far as it determined the controversy between the plaintiffs and these defendants, became merged in the decree of this Court, and thus ceased to be reviewable by the Subordinate Judge. It is equally plain that the decree of the Subordinate Judge, in so far as it embodied a determination of the controversy between the first two defendants and the plaintiffs, remained unaffected by the result of the appeal and continued to be reviewable by the Subordinate Judge. It is immaterial that Order XLI, Rule 4, authorised this Court, upon an appeal by some alone of the defendants, to make an order for reversal of the entire decree, and, thus, under Order XLI, Rule 33, to confer a benefit even upon parties who had not filed the appeal, but this Court could not, in the appeal by some of the defendants, make an order to the detriment of the others, not, at any rate, till they had been afforded an opportunity to be heard. We may observe that there is nothing unusual in the result that the effect of the dismissal of an appeal by some alone of the parties affected by a decree is to leave untouched the decree as between other parties thereto, this is illustrated by the class of. cases reviewed in Loke Nath Singh v. Gaju Singh 31 Ind. Cas. 426 : 22 C.L.J. 333 : 20 C.W.N. 178, where the question arose with reference to the period of limitation applicable when a decree has been assailed by way of appeal at the instance of some alone of the parties affected thereby. We are clearly of opinion that the application for review could be entertained only in respect of the decree as between the first two defendants and the plaintiffs. The order of the Subordinate Judge, however, erroneously sets aside the entire decree and restores the whole appeal for re-hearing.
4. The result is that the Rule is made absolute in part; the order of the 23rd March 1914 is varied to this extent, namely, that the decree passed by the Subordinate Judge, on the 23rd May 913, is set aside only in so far as it affects the first two defendants and the appeal is revived to be re-heard at their instance, and for their benefit alone. The suit must be deemed to have been finally decreed in favour of the plaintiffs as against the other three defendants, and so far as they are concerned, the decree of this Court, dated the 5th December 1913, in affirmance of the decree of the Subordinate Judge, dated the 23rd May 1913, which in its turn had affirmed the decree of the Primary Court, dated the 18th June 1912, will stand. As the petitioners have succeeded only in part, there will be no order for costs.