The court must exercise its discretion judicially in granting review of a decree. The court cannot grant review of a decree on the ground of discovery of new evidence unless the applicant proves that he had exercised due diligence in discovering the new evidence.

( 1 ) THIS appeal is against an order granting an application for review in a partition suit after the judgment had been delivered and preliminary decree had been, made on the 27th September, 1955. The application for review was made on the 13th October, 1955. The ground urged was that the applicants, defendants Nos. 1 and 2 in the suit, had discovered an entry in a birth register showing the birth of a son of Nishikanta Purkait on the 1st of August, 1924 and that this was new and important evidence which was not, after exercise of due diligence, within their knowledge and, therefore, could not be produced by them at the time when the judgment was passed.

( 2 ) ONE of the main questions in the partition suit was whether on the 24th March, 1952, when Saralabala executed a deed of sale in favour of the plaintiff as guardian of Kaniala Kanta Purkait, described in the deed as her minor son, Kamala Kanta was really a minor. It appears that thereafter on the 7th May, 1952, Kamala Kanta himself executed a deed of sale in favour of defendants Nos. 1 and 2. If Kamala Kanta was really a major on the 24th March, 1952, his interest did not pass by the sale by his mother Saralabala. If, on the other hand, he was a minor on that date, his interest passed by that sale and defendants Nos. 1 and 2 acquired nothing by the subsequent sale by Kamala Kanta on the 7th May, 1952. For this reason, the parties concentrated in that case on the evidence that had to be adduced to prove the date of Kamala Kanta's birth. On the side of the defendants, much weight was attached to the entry in a birth register of the births of Kamala Kanta and his brothers, sons of Nishikanta Purkait. Three such entries were put in evidence but while exhibits B/1 and B/2 clearly referred to the birth of sons of Nishikanta Purkait, Ex. B, it was found, showed the birth of a son of one, Nishi Chandra Purkait as distinct from Nishi Kanta Purkait. The learned Judge rejected the defence contention that Nishi Chandra, as entered in Ex. B, might be a mistake for Nishi Kanta and pointed out that it was nobody's case that, Nishi Kanta was known as Nishi Chandra, that it was the positive evidence of the plaintiff's side that there was only one Nishi Kanta Purkait in village Mankhanda and it was further clear that there were two Nishi Chandra Purkaits in the same village and one of them was still alive. Holding, therefore, that Ex. B did not refer to the birth of any son of Nishi Kanta Purkait, the learned Judge concluded that it could not be held that Ex. B/2 really related to the third son of Nishi Kanta Purkait. The conclusion reached by the learned Judge as regards the entries in the birth registers was in these words : "so the birth registers as produced by the defence side in this suit do not at all help us in solving the riddle. " after consideration of the evidence on the record, the learned Judge came to the conclusion that Kamala Kanta was really a minor on the date of execution of the kobala by Saralabala. In that view, he decreed the suit in part declaring the plaintiff's share to be 4/5th of the disputed property.

( 3 ) THE new evidence on the alleged discovery of which the defendants Nos. 1 and 2 had asked for review purports to show that one son was born to Nishi Kanta Purkait on the 1st of August, 1924. That evidence would undoubtedly be of very great assistance to the defendants in showing that Ex. B/2 referred to Kamala Kanta and consequently in showing that Kamala Kanta was a major on the date of execution of the kobala by his mother.

( 4 ) THIS application was opposed by the plaintiff mainly on two grounds, namely, that the new evidence, alleged to have been discovered, did merely show that a child was born to Nishi Kanta Purkait and not that a male child was born and further that the petitioners could easily have produced, at the time of the trial, this evidence, now sought to be introduced, if they had only searched for it with reasonable c