Edge, C.J:— This application for a review of judgment arises in this way. The first appeal in the suit was admitted to the file of first appeals by my brother Tyrrell. When the first appeal came on to be heard by my brother Tyrrell and my brother Mahmood, a preliminary objection on behalf of the respondents to the appeal being heard, that the appeal was time-barred, was taken. My brother Tyrrell was of opinion that the appellant had shown sufficient cause for not presenting the appeal within the prescribed time. My brother Mahmood was of the contrary opinion; and applying the provisions of s. 575 of the Code of Civil Procedure and s. 4 of the Indian Limitation Act, 1877, to the case, the appeal was dismissed with costs as being time-barred. By the decree which was drawn up, the appeal was dismissed with costs, and the decree from which that appeal had been brought was affirmed.
From that decree, or rather from the judgment or order of my brother Mahmood, an appeal was brought by the appellant under s. 10 of the Letters Patent which apply to this Court. The last-mentioned appeal, which was a pauper appeal, was heard by my brother Straight, my brother Brodhurst, and me, and we agreeing with the judgment of my brother Mahmood that the appellant had not shown sufficient cause for not presenting the first appeal within time, dismissed, the appeal to us. This application to us is to review our decree.
Pandit Sundar Lal kindly undertook at our request to assist the Court by arguing the case for the applicant. Pandit Bishambhar Nath for some of the respondents took the preliminary objection that the application for review was insufficiently stamped, in that it was not stamped with one-half the fee which was leviable on he first appeal. We overruled that objection, holding that as the application for review had been presented before the ninetieth day from the date of the decree which we were asked to review, art. 5 of sch. i of the Court-fees Act applied, and that for the purpose of ascertaining the court-fee to be paid on an application to review a decree passed in appeal, the fee which must be considered was the fee leviable on the memorandum of the appeal in which the decree sought to be reviewed was passed, and not the fee which was leviable on the plaint, or, as in this case, on the first appeal.
Pandit Sundar Lal contended that the appeal which we had decided must have prevailed if we had not omitted to consider the provisions of s. 27 of the Letters Patent, and that the question which we ought to have decided was not that which we did decide, namely, that the appellant had not shown sufficient cause for not presenting the first appeal within the prescribed time, but the question whether or not my brother Tyrrell and my brother Mahmood should not have proceeded to hear the first appeal on the merits, as my brother Tyrrell, who was the senior Judge, had decided that the appellant had shown sufficient cause for not presenting the first appeal within time. He contended that s. 575 of the Code of Civil Procedure did not apply to a case like the present, and consequently that s. 27 of our Letters Patent governed the procedure. On the other hand, Mr. Ross for some of the respondents and Pandit Bishambhar Nath for the others, contended that s. 575 of the Code of Civil Procedure had superseded s. 27 of the Letters Patent so far as our appellate jurisdiction is concerned. They relied on Appaji Bhivrav v. Shivlall Khubchand and Gassami Sri 180 Sri Gridhariji Maharaj Tickait v. Purshotam Gassami and s. 647 of the Code of Civil Procedure.
In the Bombay case, the Court held that the corresponding section of their Letters Patent was superseded by s. 575 of Act X of 1877, so far as regards cases to which s. 575 was applicable, and that s. 575 was extended to miscellaneous proceedings of the nature of appeals by s. 647, with which decision I entirely agree. In the Calcutta case, the Court agreed with the view taken by the Bombay High Court in Appaji Bimrav v. Shivlall Khubchand . I may remark that in each of these cases, s. 575 of the Code of Civil Procedure was applicable.
The material words in s. 27 of our Letters Patent are, “and if such Division Bench is composed of two or more Judges, and the Judges are divided in opinion as to the decision to be given on any point, such point shall be decided according to the opinion of the majority of the Judges if there shall be a majority; but if the Judges should be equally divided, then the opinion of the senior Judge shall prevail.”
If s. 27 of our Letters Patent applied, my brother Tyrrell and my brother Mahmood should have proceeded to hear the appeal and should not have dismissed the appeal on the ground that it was beyond time.
The real question for us to decide is whether s. 575 of the Code of Civil Procedure applies to this case.
According to the well established practice of this Court, it is pen to a respondent, when an appeal is called on for hearing, to take the preliminary objection to the appeal being heard, that the appeal was time-barred when the memorandum of appeal was presented to the Court for admission on the file, and such preliminary objection is decided upon before the bearing of the appeal is proceeded with. In such cases there is in fact no hearing of the appeal unless and until the Court has overruled such preliminary objection. When such preliminary objection is taken, the question is whether there is before the Court an appeal which con, having exclusive regard to the provisions of the Indian Limitation Act, be heard. When the preliminary objection is sustained, it cannot be said that the appeal has been heard or decided. In such a case, all that can be decided is that there is no appeal before the Court which the Court can hear or decide.
An examination of s. 575, in my opinion, shows that section cannot apply to a case like the present. The second paragraph of that section provides that “if there be no such majority which concurs in a judgment varying or reversing the decree appealed against, such decree shall be affirmed.” In such a case as the present, unless s. 27 of our Letters Patent applies, there could be no judgment at all varying, reversing or affirming the decree. It could not possibly have been the intention of the Legislature that a Court should decree that a decree against which there was by reason of the Indian Limitation Act no appeal for the Court to hear, should he affirmed; in other words, that a Court which, by reason of the Indian Limitation Act, had no jurisdiction to hear the appeal, should nevertheless affirm the decree below.
It was contended on behalf of the respondents that in such a case it would be the duty of the Judges differing to act in accordance with the provisions of the third paragraph of s. 575. I do not see that any such duty is imposed on Judges differing, and if there is any such duty, that paragraph applies only to cases in which “the Bench differ in opinion on a point of law,” in which case only can the Bench, differing in opinion, make such a reference.
Assume, for the purposes of argument, that in the present case my brother Tyrrell and my brother Mahmood were agreed that the cause alleged by the appellant was, if proved, sufficient cause for the appellant not presenting the appeal within the prescribed time, but that whilst my brother Tyrrell was of opinion that the cause alleged was proved in fact, my brother Mahmood was of opinion that it was not in fact proved. In that event, no such reference, as is provided for by the third paragraph of s. 575 could be made, as the Bench had not differed on a point of law.
There are many cases to which, in my opinion, s. 575 could not apply, even with the aid of s. 647. For example, suppose that an application is made to this Court under the first paragraph of s. 545 of the Code of Civil Procedure, and the two Judges, constituting the Bench before which the application is heard, differ in opinion as to whether “substantial loss may result to the party applying for stay of execution unless the order is made.” What is to happen unless s. 27 of our Letters Patent applies? If s. 27 does not apply, the application could neither be rejected nor granted there would be no decree or order to affirm; and there would be no power to refer the question under the third paragraph of s. 575; in fact, the Court, in the exercise of its jurisdiction under s. 545 of the Code of Civil Procedure, would be brought to a dead-lock.
Similar difficulties might arise on an application for a certificate to appeal to Her Majesty in Council and in many other cases.
I am of opinion that s. 27 of our Letters Patent is superseded in those cases only to which s. 575 of the Code of Civil Procedure properly, and without straining language, applies, and that this is not one of those cases. I am consequently of opinion that, on the preliminary objection to the hearing of the first appeal which was taken before my brother Tyrrell and my brother Mahmood, the opinion of my brother Tyrrell should have prevailed, and the hearing of the appeal should have proceeded on the merits according to law. I am also of opinion that, under the circumstances, there is a mistake or error apparent on the face of the record, and that there is sufficient reason for our granting this application for review of our decree and that we should grant this application.
As the counsel and vakils in the case do not desire to be further heard on the re-hearing of the appeal to which this order of mine applies, we now proceed to dispose of the appeal.
For the reasons already stated, I am of opinion that the decree appealed against should be set aside, and that the first appeal in this case should be reinstated on the file of pending appeals, and should be heard and decided according to law, and that the costs of this application and of the appeal to us should abide the result of the determination of the first appeal.
Straight, J.:— I agree.
Brodhurst, J.:— I concur.