JUDGMENT

I.B. Singh, Member. - This review application dated September 8, 1969 is against the judgment and decree of this court of May 29, 1969 relating to second appeal No. 316 of 1968-69, Gorakhpur.

2. This application was admitted for hearing on June 26, 1970. On August 5, 1971 a compromise, entered into between Smt. Sarojanmati Devi and Smt. Yasoda Devi, was filed in this court and in this compromise it was prayed that the review application dated September 8, 1969 might be disposed off in terms of the compromise.

3. The compromise application filed in connection with the review application gave rise to certain legal problems. The then learned Member Sri M. Samiuddin vide his reference order dated January 22, 1973 referred three questions for the decision to a larger Bench as according to him the points raised involved a substantial question of law.

4. The learned Member of the larger Bench Sri M. Zaheer, M. Samiuddin and B.K. Misra by their order dated October 10, 1972 answered the three questions mentioned below referred to them as follows :-

Questions :- 1. Whether a review petition in a second appeal, which has been finally disposed of, would reopen the entire question and subject matter of the appeal before the disposal of the review petition so as to enable the parties to settle their disputes and adjust the suit and the appeal through a compromise?

2. Would this also in effect not amount to reopening of the entire subject-matter of the second appeal already disposed of enabling the parties to reach a settlement without any orders on the review petition?

3. Whether such a course of action would be permissible in accordance with the provisions of Order XXIII Rule 3 read with Section 141 of the Code of Civil Procedure?

Answers :-

1. The Board must express its satisfaction that the order under review requires to be rescind,varied or altered before it can go into any other extraneous matter like a compromise.

2. It is only when the review application is to be disposed of on such lines that the subject-matter of the suit and the second appeal would be considered to have been re-opened.

3. The provisions of Order XXIII Rule 3 read with Section 141 of the Code of Civil Procedure would come into play after the Board has taken action as indicated in the answers to question Nos. 1 and 2 above.

5. After the above decision by the larger bench the review application was put up before a Division Bench consisting of learned Members Sri S. Mubarak Hasan and Sri H.N. Agarwal.

6. Sri H.N. Agarwal did not enter into the merits of the review application. He was of the view that since the Board had admitted the review application for hearing hence it should be deemed that the Board had decided to rescind or vary or alter the judgment and decree under review. He, therefore, held that the review application subject to the concurrence of this learned colleague might be decided in terms of the compromise. According to him this was perfectly a legitimate course for deciding the controversy between the parties.

7. The learned Member Sri S. Mubarak Hasan heard the review application on merits and he was of the view that the review application should be dismissed.

8. Because of the difference of opinion between the two Members a larger bench consisting of 3 Members was constituted to hear the matter.

9. In the recent Full Bench case of the Hon'ble High Court of Judicature at Allahabad in Sakal Singh and others v. Smt. Devi and another, fully reported in 1979(5) A.L.R. page 383 in replying the question bracketed below held :

"Does a mere admission of a review application and issue of a rule therein disturb the finality of the judgment in a suit or appeal and reopen and review that suit or appeal?"

"It may be pointed out that Section 5(2)(a) of the Act contemplates suits or proceedings pending before any Court or authority, whether of the first instance or of appeal, reference or revision. It does not contemplate a review petition. But if by the ad