Review jurisdiction and appeal filing under civil procedure: majority view treats later appeal as ousting hearing of an earlier review application.

Section 114 and Order 47 of the Code of Civil Procedure govern review in appealable matters, but the text is analysed as limiting review where an appeal has already been preferred. The majority view treats the scheme of the Code as inconsistent with simultaneous pursuit of appeal and review: once an appeal is filed, the appellate court becomes seized of the matter and the review court loses competence. The contrary view, supported by other judges and prior authorities, says there is no express bar and no necessary implication divesting a review application validly filed before the appeal, particularly where Order 47 Rule 1(2) recognises some reviews despite a pending appeal by another party.

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Issues: Whether the filing of an appeal after an application for review has been presented renders the review application incompetent and bars the Court from hearing it.

Analysis: Section 114 of the Code of Civil Procedure, 1908 permits review in appealable matters only where no appeal has been preferred, and Order 47 contains the procedural framework for review. The majority reasoning treated the scheme of the Code as inconsistent with simultaneous prosecution of appeal and review, and held that once an appeal is preferred the review Court loses competence because the appellate Court becomes seized of the matter. The contrary view accepted by other Judges and by several prior authorities was that the Code contains no express bar and no necessary implication taking away jurisdiction over a review application validly filed before the appeal, especially since Order 47 Rule 1(2) itself recognises some review applications notwithstanding a pending appeal by another party. The dissenting view emphasised that the right of review and the Court's jurisdiction, once properly invoked, cannot be cut down except by express words or necessary implication, and that no such implication arises from Section 114 or the connected rules.

Conclusion: The filing of an appeal subsequent to the filing of a review application makes the hearing of the review application incompetent; the reference was answered in the negative on the final majority view.

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