The distinction between amendment and novation or substitution of a decree is crucial in determining the existence of a new decree.

Venkatasubba Rao, J.

1. Pandrang Row, J., dismissed the second appeal, giving effect to an objection, in limine, that the decree from which it was filed, was superseded by a fresh decree that was passed subsequent to the filing of the appeal. The question to decide is whether there was in law a new decree passed, which had the effect of discharging the original decree. We regret to say we are constrained to differ from the learned Judges view. If the course of the proceedings be carefully followed, it will be seen that nothing was done, which could be said to have had the legal effect of vacating the decree, from which the second appeal was filed.

2. The facts relevant to the question at issue may be briefly stated. The plaintiff, alleging that he became the purchaser of the suit property, sued the defendants for possession. Their defence was that some amount was due to them, and the trial Court after over-ruling the plea, gave judgment for the plaintiff. It must be mentioned that the property, as was admitted, was held in two distinct shares; one by the first defendant and the other by his brother the second and the latters son the third. The first defendant alone appealed, without impleading defendants 2 and 3 the owners of the other part. The District Judge, giving effect to the defendants contention, reversed the Munsiffs judgment and dismissed the suit. It is from his order of dismissal that the second appeal referred to above was filed. The appellate Judge, it will be seen, committed an obvious mistake; he could have dismissed the suit, even on his own finding, against the first defendant alone, whereas he dismissed it in toto. Thereupon the plaintiff applied for a review of the District Judges decree and put forward-two grounds in support of his application : first, that subsequent to the date of the Munsiffs judgment but prior to that of the appellate judgment, there was a decision given in a certain suit which negatived the defendants right to the unpaid purchase money, by whatever name, it might be called and secondly, that the dismissal of the suit as against the second set of defendants was an error apparent on the face of the record.

3. Before proceeding further, we may mention the relevant dates : (1) the lower appellate Courts decree was passed on 7th August, 1930; (2) the review application was made on 12th September, 1930; (3) the second appeal was filed on 9th January, 1931; and (4) the order on the review petition was passed on 14th November, 1931.

4. We may at the outset refer to the valuable observations of Jenkins, C.J., as to the three stages of a review application. The first is the ex parte stage when the Court may either reject the application at once or may grant a rule calling the other side to show cause why review should not be granted. In the second stage the rule may either be admitted or rejected. If the rule is discharged, the case ends then and there; if on the other hand the rule is made absolute, then the third stage is reached. The case is then neared on the merits and may result in a repetition of the former decree or in some variation of it. In either case, the whole matter having been re-opened, there is a fresh decree Vadilal v. Fulchand I.L.R.(1905) 30 Bom. 56. This analysis by Jenkins, C.J., of the three successive stages is of fundamental importance, as observed by Mookerjee, J., in Gour v. Nilmadhab (1922) 36 C.L.J. 484.

5. The question that arises is whether the order to be presently referred to, on the review petition, was one passed in the second or in the third stage. As already said, the review was based on two grounds. So far as the petition prayed that the order dismissing the suit should be confined to the first defendant alone, the relief asked for was granted. To this extent, though the Judge purported to act under the review provisions of the Code, he must in truth be deemed to have used his powers under Section 152, Civil Procedure Code.

6. Notice was served on defend