The application for review can be heard and decided only by the Judges who heard the appeal, or where one of them is absent, by the other Judge sitting alone.

Somayya, J.

1. It is argued that this application for review can be heard only by a Bench as it relates to a decree in a first appeal. The point is directly covered by the decisions of the Calcutta High Court in Aubhoy Churn Mohunt v. Shamont Lochun Mohunt I.L.R.(1889) Cal. 788 and Maksud Mahi v. Secretary of State (1911) 9 I.C. 532. Both cases related to second appeals which were heard by two Judges as they used to be even in this Court till a few years ago. In the former case the Judges say this at pages 792 and 793:

As I said just now, at the time this rule was returned Mr. Justice Wilson had gone away on furlough and another gentleman had been appointed to perform his duties, and, consequently, he had ceased to have any jurisdiction as a Judge of this Court for the time. He was not at the time attached to the Court, and, consequently, Mr. Justice Beverley was the only one of the Judges who heard the appeal who remained attached to the Court, and was, in my opinion, the only Judge who could be appointed to hear this application. So that in our opinion Mr. Justice Beverley was quite right in deciding that he had jurisdiction to hear the matter, and was in fact the only person who could hear it. That ground therefore fails.

This is in accordance with the invariable practice of this Court. Even in first appeals, the application for review is heard and decided only by the Judges who heard the appeal or where one of them is absent by the other Judge sitting alone. Appeal No. 196 of 1928 was decided by Reilly and Burn, JJ. C.M.P. No. 516 of 1934 was filed for review of that decree. Burn, J., ordered notice and directed that the review application should be posted before a Bench. It was accordingly posted before Burn and Mockett, JJ. Apparently it was then discovered that even after notice, the review petition should be disposed of by Burn, J., alone.

2. Then this order was passed on 7th December, 1939:

...Adjourn this to some day next year when I have time to deal with it myself. This is not yet a matter for a Bench.

3. Thereafter it was heard by Burn, J., alone and disposed of finally on 30th January, 1940. The application was dismissed on the merits. I hold that this application can be heard by me. On the merits, I hold that there are no grounds for granting the review asked for. The petition is accordingly dismissed.