JUDGMENT Piggott and Walsh, JJ.
1. The applicants to this Court were defendants in a suit in the court of the Munsif of Koil. The suit was decreed on the 7th of March, 1919, and the defendants filed an appeal in the court of the District Judge on the 4th of April, 1919. On the 21st of June, 1919, they applied for a review of judgment to the trial court, alleging grounds sufficient to bring the case within the purview of Order XLVII, Rule 1, of the Code of Civil Procedure, Having filed this application they withdrew their appeal on the 8th of July, 1919, and their application for review came up for disposal on the 20th of September, 1919. The trial court refused to consider it on the merits, holding that it had no jurisdiction to entertain any such application, because on the date on which the application for review was made an appeal had been preferred to the court of the District Judge and was pending. The application before us is against this refusal to exercise jurisdiction. The case of Partab Singh v. Jaswant Singh (1919) I.L.R. 42 All. 79, which rests upon reported cases of the Mackas and of the Bombay High Courts, is authority for the proposition that if an application for review is presented to a competent court, the subsequent filing of an appeal against the decision sought to be reviewed will not bar the jurisdiction of the trial court to entertain the application for review. On the other hand, there have been a number of cases, of which Nand Kishore's case (1909) I.L.R. 32 All. 71 and Pandu v. Devji (1883) I.L.R. 7 Bom. 287 may be quoted as instances, in which the courts have evidently felt that some remedy in law must be open to a litigant who has in good faith filed an appeal against the decree of a subordinate court and then discovers that materials have come to his knowledge sufficient to afford good ground for an application for review of the adverse decision It is conceivable that the appeal on the materials on the record might be hopeless or nearly so, and that neverthless the litigant concerned might fee able to make out a strong case for review of judgment. Both this High Court and the Bombay High Court have accordingly expressed the opinion that a litigant tinder such circumstances might be permitted to withdraw his appeal and then to apply for a review of judgment. The merely technical objection that in the present case an application for review of judgment was made on the 21st of June and the appeal was not withdrawn until the 8th of July does not much impress us. The application for review was obviously pressed in argument when it was heard and disposed of by the trial court on the 20th of September, and for practical purposes the applicants for review were in the same position as if they had withdrawn their appeal before presenting the application for review. The correct position seems to be that adopted by the Bombay High Court in Ramappa, v. Bharma (1906) I.L.R. 30 Bom. 625, in which the learned Judges practically held that an appeal once withdrawn must be treated as if it had never been "presented" within the meaning of Order XLVII, Rule 1, of Code of Civil Procedure. This seems to be the only logical method of reconciling such a decision as that in 32 Allahabad, paga 71, with the strict wording of the rule and with requirements of justice, in the case of a litigant who has discovered adequate materials for an application for review after his appeal has been filed. Applying that principle to the present case, we think that the court below was wrong in refusing to entertain this application on the merits and that, as it has virtually refused to exercise jurisdiction, its order is open to interference by this Court in revision. The application for review of judgment ought to be heard and considered on the merits. We set aside the order complained of and send the case back to the trial court for this purpose. It seems reasonable that costs here and hitherto should abide the result of the application.