1. This appeal raises a very curious point with regard to the procedure to be followed in cases where a review has been granted of the judgment of a Court, and the party obtaining the review has taken no steps to proceed further in the matter. There seems to be no authority on the point. The history of the case is as follows. The Plaintiff filed a suit in the subordinate Judge's Court for possession of certain property and obtained a decree. On appeal to the District Court, the decree of the lower Court was set aside and the plaintiff's suit was dismissed with costs. The plaintiff then applied for a review of the judgment of the appellate Court and on the 19th February 1921 the District Judge granted the application. In the judgment as first written the District Judge not only granted the review-application but confirmed the decree of the lower Court by setting aside the decree of the appellate Court. But evidently it was pointed out to him that this was not the correct course to follow, for he words “Decree of the lower Court is confirmed” were struck out; and the learned Judge added “I shall re-hear the case on its merits. Both sides to argue the appeal on its merits over again”. That was the proper order to make.
2. The real question is whether when a review of a judgment has been ordered, the judgment is set aside or only held in suspense until the case has been reheard. Although it is not material for the purpose of this judgment, I may mention that defendant 2, appealed against the order granting a review to the High Court.
3. That appeal was unsuccessful.
4. On the 17th September 1921 the plaintiff died, and on the 28th April 1922, as his heirs had not been brought on the record for about 18 months, when an application was made to substiute the heirs of the plaintiff, the Judge considered that the appeal had abated. If that order were correct, it follows that the appellate Court's order dismissing the plff's suit would disappear, and the decree of the lower Court would be-restored. We think that the order made by the District Judge on the 28th April 1922 directing that the appeal abated was wrong. The effect of the review order was not to restore the decree of the trial Courts but to hold in suspense the decree of the appellate Court until it had been decided whether it should stand or not. Therefore the death of the plff-respondent could not in any way affect the status of the Appellate dcree.
5. Another way of looking at the question would be to consider who is the party to move the Court after a review-application has been granted-Clearly the party who has applied for a review. The other party stands by the order already made, and if the party to whom the review has been granted takes no steps to re-argue the matter, it is perfectly clear that the original order still remains, though it could not be enforced until the Review Order had been discharged for nonprosecution. It was for the plaintiff therefore, or his heirs to appear, before the Court of the District Judge to reargue the appeal. What arguments may be put forward or what issues may be raised on such an appearance, it is not for us to gay.
6. We merely decide now that the order of the District Judge directing that the appeal abates, must be set aside, and it remains for the plaintiff's heirs to take such steps as they may be advised to get the appellate Court's decree dismissing the plaintiff's original suit with costs set aside. The appeal is allowed and the order of abatement of appeal of the District Court set aside. The appellant to get his costs of this appeal.
7. Appeal allowed.