RATANCHAND KHIMCHAND Vs. DAMJI DHARSEY

JUDGEMENT

(1.) This is an application for a review of the decree which was passed in Appeal No. 22 of 1921 by Mr. Justice Kemp and myself on July 20, 1923. The suit was filed on January 21, 1918, and the trial Court passed a decree on December 16, 1920. From that decree there was an appeal by the defendants and that is the appeal which we decided on July 20, 1923. Thereafter the defendants presented a petition for leave to appeal to His Majesty in Council on January 17, 1924. On February 27, the appeal was declared admitted. Ultimately, however, the appeal was dismissed for want of prosecution on December 1, 1924, by the Court of Appeal here under Clause 12 of Rule 785 A of this Court which is in terms of the Order of His Majesty in Council regulating the practice in appeals to His Majesty in Council. The defendants applied for review of this order dismissing the appeal on December 18, 1924. That application was disallowed on January 26, 1925. The defendants made an application to His Majesty in Council which was dismissed on April 28, 1925.

(2.) The present application for review was made on July 24, 1925, and it is based upon the allegation that the defendants discovered a new document purporting to be the will of the late Motishaw. They discovered it by mere chance according to them on July 7, 1925. In the petition it is stated as follows ;-"The applicants submit that no amount of due diligence on their part would have resulted in the discovery of this document which has come to be known by a mere stroke of chance. This document is nearly ninety years old, i. e., must have been in existence fifty years before any of the applicants came into existence. It was practically known among the Jains at large that Motishaw died intestate and the various accounts of his life published that Motishaw died intestate."

(3.) No affidavit is filed in support of these statements in the petition : and there is no proof that the applicants could not have discovered this document while the suit was going on if they had exercised due diligence and had made a reasonable search for it. On the application for review a rule was issued by this Court to show cause why the delay in presenting this application for review should not be condoned under Section 5 of the Indian Limitation Act. In showing cause against this rule the original plaintiffs urge two objections against the application : (1) that in view of the facts that the defendants preferred an appeal to the Privy Council this review is not competent having regard to the provisions of Section 114, Clause (a), of the Civil P. C. ; and (2) that no good reason is shown why the delay should be excused.