BALLING VITHALING SAKHARPEKAR Vs. SHRI DEVASTHAN FUND

JUDGEMENT

(1.) This is an application in revision against the order of the District Judge holding that the petitioner's application to review his judgment was not competent.

(2.) It is argued for the petitioner that the appeal having been withdrawn before the application for review came on for hearing, the withdrawal of the appeal was tantamount to a non-preferring of the appeal on the consistent decisions of this Court in Pandu V/s. Devji (1883) I.L.R. 7 Bom. 287, Ramappa V/s. Bharma (1906) I.L.R. 30 Bom. 625, s.c. 8 Bom. L.R. 842, and the view of the Allahabad High Court in Ram Prasad V/s. Asa Ram (1920) I.L.R. 43 All. 288. It is argued for the opponents that on the date when the review application was filed the second appeal was pending and had not been withdrawn, and therefore under Order XLVII, Rule 1, Civil Procedure Code, the review application was not competent and was rightly dismissed by the District Court.

(3.) Apart from the slight alteration in the Civil P. C. by the words "No appeal has been preferred", the difficulty is occasioned by the hardship of the present rule in cases where fresh evidence is discovered after an appeal has been filed; and it was to meet this difficulty that this Court, from Nanabhai Vallabhdas V/s. Nathabhai Haribhai (1872) 9 B.H.C.K. 89 to Pandu V/s. Devji, has held that in such cases the appellant might be allowed to withdraw his appeal if he wished to prosecute his application for review. At the same time it was pointed out by Sargent C.J. in Pandu V/s. Devji at page 288 that:-- The intention of the law Booms merely to be to prevent a party, against whom judgment has been passed, from availing himself of two remedies at one and the same time, and applying for a review while his appeal is pending.