1. The respondent Narayanan Clietti alias Ranganadhan Chetti while residing in Saigon brought a suit in the Subordinate Court of Madura (East) through Yenkasami Aiyangar who hold a general power of attorney from him and who was his recognised agent, against, among others, the appellant Kamanadhan Chetti as 4th defendant, with reference to certain disputes connected with the temple in Ariyakudi in the Sivaganga Zemindari, of which institution the respondent claimed to be one of the managers. Pending the suit the recognised agent and the appellant entered into a compromise in accordance with one of the terms of which the suit was to be withdrawn. The recognised agent not having in accordance with the compromise applied for the withdrawal of the suit, the appellant, under Section 375 of the Civil Procedure Code, brought the compromise to the notice of the Subordinate Judge who thereupon dismissed the suit on the 10th September 1901.
2. On the 5th November succeeding, the respondent applied for a review on the grounds that the recognised agent had no authority to enter into the compromise and that he acted fraudulently and in collusion with the respondent in the matter.
3. On the 18th December following, the respondent preferred an appeal to this Court against the decree dismissing the suit which appeal is still pending.
4. The application for review of the decree came on finally before the Subordinate Judge on the 17th March 1902 and was allowed, he being of opinion that the recognised agent had exceeded his authority in entering into the compromise though the allegation of fraud and collusion between the agent and the appellant had been given up. The decree was set aside and the suit was restored to the file with a view to its being proceeded with.
5. This order is impeached in the present appeal and in Eevision Petition No. 344 of 1902 which it is necessary to consider with it.
6. The first point for determination is whether it was competent to the Subordinate Judge to pass the order in question, having regard to the existence of the appeal preferred by the respondent against the decree to which the order related and this question depends upon the view to be taken as to the effect of an appeal against a final decree, duly filed and pending and upon the power of the Court passing the decree, in. connection witli the litigation which is the subject of the appeal.
7. One and, as it would seem, a somewhat extreme theory in the matter is that adopted in the New Hampshire Statute referred to in Stalbird v. Beattie 72 Am. Dec., p. 317, 36 N.H. 445 according to which such an appeal actually Bi vacates the judgment appealed from, leaving the case with its incidents as it stood before rendition of judgment, the pleadings and evidence remaining unaffected and it being the duty of the Appellate Court to hear and try the case as if no judgment had been pronounced or rendered in the Courts below.
8. The case of the United States Court ot Claims is peculiar in another way as that Court is empowered to grant a new trial pending an appeal against its decision, thereby in effect putting an end to the appeal and resuming jurisdiction over the cause.# This "anomalous" power, as Chief Justice Waite of the Supreme Court of the United States described it in United Slate* v. Young 94 U.Section 258 is one conferred by au express enactment of the Legislature with reference apparently to the very special character of the claims capable of being brought before that Court, viz., claims founded upon any law of the Congress or upon any regulation of an Executive department or upon any contract with the United States.
9. But the more generally received theory and the one which lias hitherto been acted on in this country, is that a pending appeal, without annulling the judgment appealed against, loaves it subsisting as a valid adjudication governing the rights of the parties, but that the further litigation and all matters connected therewith are transferred to and. placed under the control of the Appellate Court. In this view it follows that when an appeal has been duly filed the Lower Court has, pending the decision of the appeal, no jurisdiction over the cause and can, as a rule, pass no order therein. In other words, the action of the inferior Court is, of necessity, suspended by the appeal until the Appellate Court has disposed of it, for, us observed in Helm v. Boone 22 Am. Dec, p. 75; 6 J.J. Marshall, 351 " there could not be a greater absurdity in judicial proceedings than that a cause should be progressing at the same time in the inferior and appellate tribunals of the country 22 Am. Dec. at p. 77.
10. The dictum of Lord Eldon in Huguenin v. Baseley 33 Bug. Rep. 724 cited on behalf of the respondent, referring, as it does, to a bill of review, which is the commencement of litigation distinct from that in which the appeal has been preferred, is not in point. As to the observation of Sir James Bacon, Chief Judge in Bankruptcy, in Esparto Keightley L.R., 9 Ch. 667 to the effect that the pendency of the appeal to himself from the order of the County-Court Judge did not affect tho latter Judge's jurisdiction to re-hear the case in the County Court, that opinion was expressed with reference to the very wide terms of Section 71 of the Bankruptcy Act (32 and 33 Vic,' C. 71), viz., " every Court which has jurisdiction in bankruptcy under this Act may review, rescind or vary any order made by it in pursuance of this Act". Moreover in Ex parte Banco de Portugal 14 Ch. D. p. 1 whether, notwithstanding the provision quoted above, the Court of Appeal had power to re-hear a bankruptcy case after an appeal therein to the House of Lords, was treated as an open question.
11. So far as appears, then, there seems to be no direct English authority available with reference to the point under consideration. The ruling of the Judicial Committee in In the matter of Gandas Nurrondas Navivahu v. C.A. Turner I.L.R., 13 B. p. 520 at p. 534 to which Mr. Srrinivsa Aiyangar drew our attention, that the amendment by the High Court (though not upon a review) of the order appealed against, after the appeal to Her Majesty had been presented was beyond the competence of the High Court, is one which, so far as it goes, is distinctly in favour of the view taken above as to the position of an inferior Court after an appeal, in regard to the matter under appeal. Sections 545 and 546 of the Civil Procedure Code clearly imply that an appeal incapacitates the inferior Court from dealing with the litigation since even the power of staying execution is, once an appeal is made, taken away from that [Court and is exercisable by the Appellate Court only. >Section 623 of the Code, relating to review, even more plainly points to this view instead of as contended for the respondent, to the contrary. Not only is an application for review by a party who has already appealed disallowed by that section but even in the case of a party not appealing no review lies when there is an appeal by some other party on a common ground, or where the former as a respondent is in a position to bring before tho Appellate Court the matter to be reviewed. The manifest intention of the provision is to avoid a conflict of jurisdiction and R to prevent any action on tlio part of the inferior Court which would have the effect of controlling the powers of the higher Court with reference to the matter actually under appeal. Though a party who has applied for a review is for obvious reasons not precluded from appealing, the Code does not provide for the procedure to be followed when an appeal is preferred after the review. Of course both proceedings could not go on simultaneously. If the review proceeding is to be continued and the appeal stayed, expediency would require that the party affected by the final order in the review should be enabled to obtain a remedy in the pending appeal notwithstanding that such remedy would be in respect of what was not in existence on the date of the appeal. Anomalous as such a course would be with reference to what was said by Brett, L.J., in Ex parte Banco de Portugul already cited 14 Ch. D. 4 at p. 5 it may be open to the Legislature to introduce it into our procedure by a provision like that proposed in Clause 3 and 4 of Section 623 in the Civil Procedure Code Bill, now before the Viceroy in Council and referred to in the argument before us on behalf of the respondent. But in the absence of such an express enactment it must on principle be held that after the due filing of the appeal and during its pendency the power of the inferior Court in any way to deal with the liti% gation is completely in abeyance, except to carry out the decree which, of course, it is the duty of the Court to do, as Section 545 of the Civil Procedure Code in terms provides that the execution of the decree is not stayed by the mere fact that an appeal has been preferred against it.
12. The two cases relied on on behalf of the respondent are clearly distinguishable. In Bhart Chandra Mozumdar v. Ramgunga Sen Bong. L.R.F.B. p. 362 when the matter of review was finally dealt with by the Lower Court no appeal was pending, as the one which had been presented had already been withdrawn. In Thahoor Pramd v. Balak Ram 12 C.L.R. p. 64 though an. application for leave to the Judicial Committee had been made, yet it had not been granted at the time of the disposal of the review and therefore no appeal can be said to have been pending. It follows, therefore, that the order of the Subordinate Judge granting the review, setting aside the decree and re-opening the litigation in his Court was ultra vires
13. In this view it remains to decide whether an appeal against the order granting the review is sustainable on the ground that the order was passed without jurisdiction in circumstances such as those of the present rase. Notwithstanding that this ground is not one of those referred to in Section 629, C.P.C. the answer to the question must, it would seem, be in the affirmative for the reason that where an appeal is allowed, the question of jurisdiction is necessarily an appealable ground. Compare observations of Jessel, M.R., in In re Pads ton Total Loss and Collision Assurance 20 Ch. D. p. 137 at p. 142. Should this view not be corrfect it must be held that this Court has pow%er to revise the order of the Subordinate Judge in question under Section 622 of the Civil Procedure Code, for if the words of S 629, C.P.C. viz., "such objection (i.e., any of those mentioned in the section) may be made at once by an appeal against the order granting the application or may be taken in any appeal against the final decree or order in the suit," would preclude an objection as to jurisdiction being taken in an appeal against an order granting the review, they would equally preclude, such objection from being urged in an appeal preferred against the final decree or order made in the suit (see Broda Churn Bose v. Gobind Proshad Tevasy I.L. It., 22 Cal. p. 984) and if it be held that he is not entitled to apply for revision under Section 622, the party will be altogether without a remedy.
14. For these reasons the order of the Subordinate Judge in question must be set aside. The respondent will pay the costs of the appellant in this and in the lower appellate Court.