JUDGMENT
Ainslie, J.
1. The points which have been urged before us are, that, whereas Section 119 provides a definite limit of time, beyond which an application for a rehearing shall not be entertained by the Court, the order of the Judge admitting the application, and all the proceedings following thereon, have been done without sanction of law; and that in this appeal from the decree, the appellant has a right to question every order of the subordinate Courts leading up to the decree objected to.
2. Section 119 of the Code of Civil Procedure says that, in all cases in which the Court shall pass an order under this section for setting aside a judgment, the order shall be final. But it is contended on the strength of a Full Bench judgment in Bhyrub Chunder Surma Chowdhry v. Madhubram Surmah 11 B.L.R. 423 that the word “final” does not mean final absolutely, but final for the time; that the order by itself shall not be open to appeal; but that whenever the case is opened by an appeal from the decree, that order, as well as every other interlocutory order, may form the subject of appeal.
3. There can be no doubt that, if a case under Section 119 cannot be distinguished in principle from a case under Section 378[1] we ought to follow the ruling of the Full Bench. Though we are not constrained by a positive rule of the Court, we ought not to refuse to be guided by a decision on a matter which appeals to us to be strictly analogous; it is for the respondent to satisfy us that the supposed analogy does not really exist, and that he has failed to do.
4. Independently of this, there is a reported case exactly in point–Bimola Soonduree Dossee v. Kalee Kishen Mojoomdar 22 W.R. 5. See also Radha Binode Chowdhry v. Juggut Shurnokar 6. W.R. 300 Toolsee Dossee v. Durga Churn Paul 15 W.R. 175 and Keshavram v. Ramchandra Trimbak 8 Bom. H.C. Rep. A.C. 44 decided by Jackson and McDonell, JJ. and the view taken by Jackson, J., is this, that a Court acting under Section 119 has jurisdiction to act under the particular conditions specified by the section, but unless an application can be shown to be within, those conditions, the Court has no jurisdiction whatever to entertain it.
5. After referring to that portion of the section which I have read above, he says: “Therefore if it appears that the Court had passed an order otherwise than under this section, there would be no finality, and it has been held in a matter very much analogous to this, viz., where an application to review a judgment has been admitted, and where a decision afterwards takes place on rehearing, and that decision comes to the lower Appellate Court on appeal, that the lower Appellate Court is competent to look into the question whether the admission of the review has been in accordance with the restrictions imposed by the law.”
6. On the face of these proceedings, it is manifest that Section 119, which strictly limits the period for making an application for rehearing to thirty days, to be computed from definite starting points, absolutely barred the hearing of the application by the first or any other Court.
7. It has been argued that the plaintiff had a remedy by motion in this Court under Section 15 of the Charter Act. It may be conceded that he had a remedy, but no authority has been shown to us for the proposition that, if a man has two remedies, and does not choose to take the one, he shall forfeit the other. If the plaintiff has aright to appeal against this order the fact that he had a right to question it by motion under Section 15 cannot take away the former right. It was also urged that it is a matter of discretion with the Court to give or withhold from the plaintiff the advantage of the limitation prescribed in Section 119. But if this is a point that he may fairly and properly raise in special appeal, it is not a matter of discretion with the Court. Our judgment is claimed on this point, and we can neither refuse to decide it in favour of the plaintiff, nor having decided it in his favour, can we refuse to give him the benefit of the decision.
8. The result is, that the order made for the rehearing of the case, and dated the 25th of June 1874, and all the proceedings subsequent thereto, must be quashed, and the whole of the costs of these proceedings must be paid by the respondents.
[1]
[Section 378.--If the Court shall be of opinion that there are not any sufficient grounds for
The order of the Court for a review it shall reject the application, but if it shall be of
granting or refusing the re- opinon that the reyiew des,red is necessary to correct an evi-
view is final. dent error or omission, or is otherwise requisite for the ends of
justice, the Court shall grant the review, and its order, in
either case, whether for rejecting the application or granting the
preview shall be final. Provided that no review of judgment shall
be granted without previous notice to the opposite party to enable
Proviso. him to appear and be heard in support of the decree of which a
review is solicited.]
