Shah and Others v Abdulla and Another (Civil Suit No. 200 of 1953) [1955] EACA 3 (1 January 1955)

# ORIGINAL CIVIL

### Before BOURKE, J.

## GHELA MANEK SHAH AND OTHERS, Applicants

# MOHAMED HAJI ABDULLA AND ANOTHER, Respondents Civil Suit No. 200 of 1953

Review—Civil Procedure Ordinance, Cap. 5, section 80—Civil Procedure (Revised) Rules, 1948, Order 44, rule 1—Judgment without decree—Whether procedure by review competent—Appeal preferred by respondent—Whether applicant barred from remedy by review-Limitation-Indian Limitation Act, 1877, section 162—Period of limitation runs from decree—No decree extant-Whether review time-barred-Delay in application-Discretion of Court-Whether Court can interfere by review with consent judgment because of error by advocate.

### The facts are fully set out in the Order.

Held (7-4-55).—(1) Review lies under section 80 of the Civil Procedure Ordinance, Cap. 5, and<br>Order 44, rule 1, only, where a person is aggrieved by a decree. As there was only judgment, but no formal decree in existence, procedure by review was incompetent.

(2) Although the respondents had preferred an appeal, merely on that ground, the applicants were not procedurally barred from seeking remedy by review as provided by Order 44, rule 1.

(3) Application by review was not time-barred by the operation of section 162 of the Indian Limitation Act, 1877, because the period of limitation, applied by the Act, ran from the date of decree only and there was no decree.

(4) The terms of the consent judgment had been clearly expressed before the Court, at a time when a specific issue raised by the plaintiff had been abandoned. The Court at the time of judgment and change its judgment and finally adjudicate on terms now said to have been agreed but communicated to it, on review, for the first time. If applications for review were allowed on such grounds there would be no end to legal proceedings.

(5) Review is a matter of discretion and the delay of nearly a year after judgment, before applying for review would, in itself, justify a refusal of the application.

Cases cited: F. H. Mohamedbhai & Co., Ltd. v. Yusuf Abdul Ghani, (1952) E. A. C. A. 38; Jankiram Company of Dindigul v. Chunilal Shriram Chandak, (1944) E. A. C. A. 38; Jankiram Company of Dindigul v. Chunilal Shriram Chandak, (1944) I. L. R. Bom. 675; Pandu v. D

Authorities cited: A. I. R. Commentaries (1951), 5th edn., Vol. 3, pp. 3531, 3532, 3548; Mulla, Code of Civil Procedure, 10th edn., 1142.

Application for review refused.

Harris for applicants.

**Budhdeo** for respondents.

ORDER.—This is an application by way of notice of motion for the review of a judgment under Order 44, rule 1 (2). The judgment was passed by this Court on the 18th February, 1954, in a suit between the parties, the present applicants being plaintiffs in the action. In May, 1954, an appeal was lodged against the judgment by the present respondents. On the 17th June, 1954, the record was settled by the Registrar of the Court of Appeal and in pursuance

of an order for security for costs the amount fixed was deposited on the 30th June. As further appears from the affidavit of Mr. Budhdeo, being the advocate for the present respondents and who entered the appeal on their behalf, he corresponded with Messrs. Hamilton, Harrison and Mathews, the advocates for the applicants, who appeared for them throughout, enquiring if it would be convenient for them to have the appeal listed for hearing during the sessions commencing at Mombasa on the 3rd August, 1954. He received a reply saying that no member of their firm would be at Mombasa for the said session of the Court of Appeal. The appeal was eventually fixed for hearing on 12th January, 1955, a notice to that effect, dated 17th December, having been issued to the parties. On the 16th December, 1954, the notice of motion for review was filed in this Court and service was effected on Mr. Budhdeo, on 20th December. That was the first the respondents learnt of any intention to seek a review. Ten months had been allowed to elapse from the time of delivery of the judgment until the date the application for review was lodged. The hearing of the appeal was postponed pending the determination of this application.

It is necessary, for an understanding of the matter, to give a brief account of the nature of the action in which the applicants obtained the judgment they now seek to review. The parties had entered into an agreement of sale of a plot with the buildings standing thereon. The applicants were the purchasers and the respondents the vendors. The purchase price was Sh. 125,000. A deposit of Sh. 25,000 was paid and the balance became payable on or before a fixed date against the execution of a conveyance by the vendors. There were three tenants of the premises, each being in possession of a portion. Prior to the execution of any conveyance one of the tenants named Velji Ravji Barber surrendered the tenancy of that part of the premises let to him and vacated. On the same day that vacant possession was so given, the respondents relet this portion of the property to a new tenant without any notice to the applicants.

The applicants sued and prayed for the following relief:-

- (i) "That the defendants may be ordered specifically to complete the said sale by delivering to the plaintiffs, contemporaneously with the execution of the above-mentioned Indenture of Assignment and on payment to the defendants by the plaintiffs of the said sum of Shillings 100,000 the premises comprised in the said agreement with vacant possession of so much thereof as was so surrendered to the defendants by the said Velji Ravji Barber. - (ii) "Alternatively: $-$ - (a) That the plaintiffs be declared entitled to damages for the failure of the defendants to preserve as from the date of the surrender to the defendants by the said Velji Ravji Barber of his tenancy therein that portion of the said premises so surrendered free from occupation or enjoyment by any other person and for their consequent inability or failure to deliver to the purchasers the premises so agreed to be sold free from encumbrances and with vacant possession of the portion thereof which had been surrendered to them by the said Velji Ravji Barber as above-mentioned. - (b) "That the amount of such damages be determined by this Honourable Court and that for such purposes if necessary an enquiry be had. - (c) "That the defendants be ordered and directed that upon payment to them by the plaintiffs of the said sum of Sh. 125,000 the agreed purchase price of the said premises, less by the sum of Sh. 25,000 being the amount of the deposit so paid by or on behalf of the plaintiffs and also less by the amount of damages awarded as above,

they the defendants do execute in favour of the plaintiffs the said Indenture of Assignment. and do deliver to tjle plaintiffs the same together with the said premises subject to such lettings as may be subsisting therein."

At the trial of the action Mr. Harragin appeared for the plaintiffs (present applicants) and Mr. O'Brien Kelly for the defendants (present respondents).

The agreed issues were: (I) In view of the agreed facts were defendants entitied in law to relet the preniises referred to without authority of plaintiffs? '(2) If not, have plaintiffs suffered damage, and if so what damage?

The plaintiffs called evidence on the issue of damages, no evidence being led for the defendants.

ln opening his address on the legai questions involved, Mr. Harragin stated (I quote from my notes on record. which have been referred to on this application): -

"No notice or authority for reletting sought from us. We were entitled to the benefit of the surrender, (we were) denied it, therefore entitled to damages. What damages? We asked specific performance but this impossible. Only relief damages."

Judgment was given on a later date when Mr. Harris (who appears for the applicants) appeared for the plaintiffs and Mr. O'Brien Kelly for the defendants. Having regard to what had been stated by Mr. Harragin I said in my judgment-"the plaintiffs claim damages and have abandoned the claim for specific performance". I concluded the judgment as follows: "I assess the damages at Sb. 18,000 and in view of the relinquishing of the claim for performance and the nature of the prayer as it stands, I will hear the parties as to the form in which judgment should be entered".

My recollection of what then occurred is very clear and is borne out by my notes taken at the time and by what Mr. Harris has stated on this application, which appears from my notes. Mr. Harris said, in response to the enquiry as to entry of judgment: "There should be judgment for plaintiffs for damages in sum assessed-Sh. J 8,000-and costs". Mr. O'Brien Kelly rose and said: "I agree". Thereupon l entered judgment accordingly and. following my practice (Mr. Harris recollects that this was done), read out what l had written, namely, "Judgment is entered for plaintiffs against defendants in sum of Sh. 18,000 as damages with costs". No objection was taken to that form of judgment entered at request and by consent of the advocates for the parties. My impression was that any differences concerned with the execution of the conveyance had been smoothed out and had been the subject of arrangement or settlement between the parties, and that all that was required was judgment in respect of the damages estimated on adjudication of the agreed issues as to liability and amount. On the pleadings there was contest as to the alleged right to specific performance; but such was not included as an agreed issue: no evidence was led *to* any such issue: it was stated that the only relief sought was in damages; and finally it was stated as agreed that judgment should be for ihe damages as assessed and costs .

r

. The granting of this application for re,view is sought in order that there may be a rehearing (Order 44, rule 6), and, in the words of .the notice of motion, that judgment should be entered: - ·

"For the plaintiffs against the defendants to the effect following. that ·is to say, that the defendants be directed, upon payment to them by the plaintiffs of the sum of Sh. 125,000 being the agreed purchase price of the premise~ cons1stmg qf plot. known as L. R. No. 209 / 50,2 situate at River Road Nairobi with the builpjogs standing thereon rrferred to in the Plaint ·1ess the sum of ·sh. 25,000 deposit paid by the plaintiffs and less also by the sum of Sh. 18,000 damages awardec! · to th~ pl~intiffs herein and less also by the costs of the plaintiffs hereiri when taxed, to execute in favour of the plajntiffs the Indenture of Assignment of the said premises already prepared on behalf of the plaintiffs and submitted to the defendants and to deliver the same when executed to Messrs. Hamilton, Harrison & Mathews, the plaintiffs' Advocates herein and to hand over to the plaintiffs possession of the said premises subject to and with the benefit of such lettings as may be subsisting therein."

The applicants are. therefore, enqeavouring to obtain the relief as prayed in paragraph (ii) (c) of the prayer in the plaint. The application is supported by the affidavit of Mr. Harris. There is no affidavit by either Mr. Harragin or Mr. O'Brien Kelly. 1n paragraph 5 of the said affidavit it is deposed:-

"That at the hearing of the suit before the Honourable Mr. Justice Bourke on the 11th day of February 1954 the plaintiffs were represented, in the absence of this deponent, by Mr. W. L. Harragin, Advocate, of my said firm and it was conceded on behalf of the plaintiffs that if, as appeared to be the case, the unauthorized reletting of the portion of the premises which had been surrendered was still subsisting, a decree for specific performance as claimed at par. (i) of the prayer to the plaint would not be enforceable and should not be pressed for and that accordingly the issues for determination by the Court should be confined to the alternative relief claimed at par. (ii) of the said prayer."

The source from which the deponent obtained this information is not disclosed. I believe my notes on record accurately reflect what was said. Issues were fixed relevant to the matter prayed by paragraph (ii) (a) and (b); there was no reference to paragraph (ii) (c) of the prayer.

Paragraphs 7 and 8 of the affidavit of Mr. Harris read as follows: -

"(7) That at the said hearing on the 18th day of February, 1954, the plaintiffs were represented by this deponent and the defendants by Mr. J. O'Brien Kelly, advocate, a member of the said firm of O'Brien Kelly and Hassan, and that immediately following the delivery of the said judgment Mr. O'Brien Kelly agreed with this deponent that judgment should be entered for the plaintiffs in the form set out at paragraph (ii) (a), (h) and (c) of the prayer to the plaint save that in lieu of directing an enquiry as to damages as mentioned at clause (h) of that paragraph the damages should be the sum of Shillings 18,000 referred to in the said judgment, and this deponent. in reply to his Lordship's enquiry as to the form of order required, sought to intimate such agreement to the Court. I refer to a copy of a joint letter to the Registrar of this Honourable Court dated the 28th day of June, J 954 from my said firm and the firm of O'Brien Kelly, Hassan and Miller (successors to O'Brien Kelly and Hassan) and signed by' me and the said Mr. O'Brien Kelly (the original whereof is on the file of this Honourable Court) upon which marked with the letter "C" I have endorsed my name at the time of swearing hereof. ·

(8) That in endeavouring so to convey to the Court the effect of such agreement between this deponent and Mr. O'Brien Kelly it would appear that this deponent did not make himself clear, with the result that judgment was eqtered for the said sum of Sh. 18,000 as damages, with costs, but the relief sought at clause (c) of paragraph (ii) was not included in the judgment as entered."

I find it difficult to aboreciate what the deponent means in saving (paragraph 7) that he "solight to intimate slich agreement to the Court", or that (paragraph 8) "it would appear that this deponent did not make himself clear". I have already referred to what in fact was said by counsel at the time judgment was entered. Every opportunity was given to the advocates to make their submissions as to the form in which judgment should be entered; and it was clearly and concisely stated what the judgment should be as a matter of consent. Mr. Harris has said on this application that his attitude then was the result of a misunderstanding and that anyway he thought the relief sought in paragraph (ii) (c) of the prayer would appear in the formal decree to be drawn up—despite the provisions of<br>Order 20, rules 6 and 7. He said quite frankly—"I had not attended at the hearing and may have thought you had intimated there would be the alternative relief directing assignment anyway; and I was concerned with entering a decree for the damages to be deducted from the purchase price. I didn't know what had been said during the proceedings by Mr. Harragin and Mr. O'Brien Kelly. I remember you read out the form of judgment and I thought the other matter as to directing assignment had been dealt with earlier and damages was the only matter left—so I said judgment for damages and costs. After all, we are clearly entitled to the relief on the merits and admissions. We were both agreed on the full alternative relief claimed. . . Nothing was said about the alternative prayer (in the plaint) to the Court".

Mr. Budhdeo argues that if it was a matter of failing to communicate to the Court that there was to be a consent order for specific performance as prayed in paragraph (ii) (c) of the prayer, then there was a failure to exercise due diligence: there was no mistake or error apparent on the face of the record and no sufficient reason for review by way of these very belated proceedings. He, Mr. Budhdeo, states that the other side was probably quite confident that Mr. O'Brien Kelly would get his clients to execute the agreement and an adjustment was being made between the parties.

The applicants rely upon the letter of 28th June, 1954, referred to in paragraph 7, quoted above, of Mr. Harris' affidavit, which sets out that it was agreed between the advocates appearing for the parties that the order which should be made was in effect, "an order as claimed at paragraph (ii) of the prayer of the plaint save that the enquiry as to damages is not necessary in view of the Court having already assessed the damages at Sh. 18,000".

Mr. Budhdeo contends that a review cannot properly be granted on a subsequent admission of this kind, which was made without his knowledge or that of his clients: if there was such an agreement at the time of the trial it was not made known to the Court and no mistake is apparent on the face of the record: there is no affidavit by Mr. O'Brien Kelly going to show any consent to an order for specific performance; but there is his formal consent on record to the judgment as entered. If the suit was reopened on a granting of the application for review, it would be submitted that there was no case made out for ordering specific performance; performance, Mr. Budhdeo affirms, was never refused by his clients; there was no default by the vendors.

Mr. Harris also referred to sections 97, 99 and 100 of the Civil Procedure Ordinance, though he agreed it was not a matter for application of the slip rule (section 99). Mr. Budhdeo pointed out that this was expressly an application by notice of motion for review under Order 44, rule 1 (2), and he referred to Order 20, rule 3 (3). It was not an application or a matter for the exercise of inherent powers (section 97) or for amendment (section 100) in a suit that had not reached the stage of determination. He further raises three preliminary objections going to the validity of these proceedings for review.

In the first place it is argued that since no decree has been drawn up, the application is bad because review lies, under section 80 of the Civil Procedure Ordinance and Order 44, rule 1, only where a person considers himself aggrieved by a decree, and there is no formal decree in existence but only a judgment. It is stressed that under the proviso to the definition of "decree" in section 2 of the Civil Procedure Ordinance, it is only for the purposes of appeal that the word "decree" shall include judgment; a judgment is appealable notwithstanding that a decree in pursuance thereof may not have been drawn up. Section 80 and Order 44, rule 1, are devised for the purposes of review and the use of the word "decree" therein is not for the purposes of appeal and so does not include judgment. I think there is substance in this argument. It is true that there is a judgment "from which an appeal is allowed" by virtue of the proviso under reference and the provisions of section 66 of the Civil Procedure Ordinance (and see F. H. Mohamedbhai & Co. Ltd. v. Yusuf Abdul Ghani, (1952) 19 E. A. C. A. 38); but there is no provision that for the purposes of review the word "decree" shall include judgment. A review is not the same thing as, or a substitute for, an appeal (A. I. R. Commentaries, 5th (1951) edn., Vol. 3, page 3531). Since there is no decree it is not open to the applicants to obtain a review.

It is also contended that since an appeal has been preferred (by the respondents), proceedings for review do not lie. This argument is based on the wording of section 80 of the Civil Procedure Ordinance, from which flows the jurisdiction in review, and which reads as follows:-

"80. Any person considering himself aggrieved—

- (a) by a decree or order from which an appeal is allowed by this Ordinance, but from which no appeal has been preferred; or - (b) by a decree or order from which no appeal is allowed by this Ordinance.

may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit."

The words of this section appear again in Order 44, rule 1 (1); but sub-rule (2) of that rule, under which the applicants move, is in the following terms:-

"(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate court the case on which he applies for the review."

It is submitted that this sub-rule is *ultra vires* the powers to make rules conferred by section 81 of the Civil Procedure Ordinance, as being inconsistent with section 80 (a) of that Ordinance. Reference has been made to the Indian Code of Civil Procedure from which Order 44, rule 1, has been taken (Order 47, rule 1, -Mulla, 10th edn., page 1142); but I do not find it necessary to consider the point based on the legislative authority, as to why Order 47, rule 1 (2), of the Indian Code (equivalent to our Order 44, rule 1 (2)) is not ultra vires, though, according to the argument, it is also inconsistent with section 114 $(a)$ of the Indian Code, which is equivalent to section 80 (a) of our Civil Procedure Ordinance. The whole of Mr. Budhdeo's argument is founded on this, that the words "but from which no appeal has been preferred" in section 80 (a) of the Ordinance, must be read to preclude any review where an appeal has been preferred by the party on either side. On that reading Order 44, rule 1 (2), would be inconsistent as permitting an application for review by a party not appealing notwithstanding the pendency of an appeal by some other party. It seems to me to be plain enough that the words under consideration in section 80 $(a)$ and Order 44, rule 1 (a), are to be read as precluding application for review by the person considering himself aggrieved where such person has preferred an appeal. I refer to the A. I. R. Commentaries on the Indian Code of Civil Procedure, 5th edn., Vol. 3, page 3532, and to Jankiram Co. of Dindigut v. Chunilal Shriram Chandak, (1944) I. L. R. Bom. 675. At page 680 of that report the observation of Sargent, C. J., in *Pandu v. Devji*, (1872) 9 Bom. H. C. R. 89 at page 288 (not available) is quoted as follows:-

"The intention of the law seems merely to be to prevent a party, against whom judgment has been passed, from availing himself of two remedies at one and the same time; and applying for a review while his appeal is pending.

I think that is right and I would, with respect, adopt that observation as affording the answer to the question raised. It is not a matter of the preferring of an appeal by either party to proceedings resulting in a decree or order, but of the person aggrieved being prevented from seeking review where he has resorted to the remedy of appeal. That being so, there is none of the alleged inconsistency in Order 44, rule 1 (2), and this sub-rule is not *ultra vires* the rule-making powers. The fact that the respondents preferred an appeal before the applicants moved for review does not render these present proceedings bad and ineffective. This point accordingly fails.

The third point taken and specifically pleaded on behalf of the respondents is that the application is time-barred. Mr. Budhdeo stated that he did not rely upon this defence if the Court decided in his favour on the first two points raised. As he has failed on the second point I proceed to consider the question of limitation.

It appears that there is no provision in any local Ordinance or law providing a period of limitation in respect of an application for review. Mr. Budhdeo accordingly relies upon the saving covering the Indian Limitation Act, 1877. contained in section 41 of the Limitation Ordinance, Cap. 11. By section 162' of that Act, the period of limitation is twenty days from the date of the decree or order where the review is sought from any of the High Courts of Judicature at Fort William, Madras and Bombay or the Chief Court of the Punjab in the exercise of its original jurisdiction. Assuming that Mr. Budhdeo is correct inhis argument that what was provided in respect of such specified High Courts in India is the law binding upon the Supreme Court in Kenya, by reason of the provisions of sections 3 and 4 of the Indian Acts (Amendments) Ordinance, Cap. 2, he is left with the difficulty arising over the date of the decree. In<br>India the date of the decree is the date of the judgment (Order 20, rule 7), whereas in Kenya the date of the decree bears date of the day on which it is signed (Order 20, rule 7 (1)). Having already successfully argued that the judgment cannot be regarded as a decree for the purposes of an application for review, the respondents' advocate now appears to be in some degree hoist with his own petard, for since there is no decree time never began to run; and if a decree were now taken out the twenty days would, according to the argument, commence on the date it was signed. Mr. Budhdeo submits, however, that here one should take the date of the judgment and not the date of any decree. I quite fail to see how this could properly be done. I may be wrong in having held that "decree" in section 80 (a) and Order 44, rule 1, does not include judgment by virtue of the proviso in section 2 of the Civil Procedure Ordinance, but, even if that be so, the word "decree" in section 162 of the Indian Limitation Act, 1877, clearly cannot be given such an extended meaning. Limitation, after all, is the artificial creature of statute, and a party relying upon such a means of excluding resort to a remedy must be strictly kept within the restrictive provisions of the particular enactment. Mr. Budhdeo's argument that since the applicants failed to take out a decree, they cannot avail of their own default to resist the defence of limitation has, in my opinion, no bearing whatever on the matter. This point accordingly also fails.

Lest it be held, elsewhere, that I have erred in deciding the first preliminary point concerned with the absence of a decree, in favour of the respondents. I think it right to address my mind to the merits. This is not an instance of a review being sought on ground of the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge of the party or could not be produced by him at the time when the decree (assuming "decree" includes judgment) was passed; nor is it an instance of some mistake or error apparent on the face of the record. The question remains whether there is "any other sufficient reason" to permit a review. These words refer to a reason analogous to those specified in the rule (Chhajju Ram v. Neki and others, (1922) I. L. R. 3 Lah. 127 (P. C.). The advocate for the applicants is saying in effect that "the judgment I asked to be entered is not that which the parties really agreed upon. I failed through a misunderstanding to communicate the true position to the Court and anyway I thought the decree would be in the form of an order for specific performance, as praved at paragraph (ii) $(c)$ of the plaint. allowing Sh. 18,000 in account as damages". Then a letter to the Registrar, admittedly signed by Mr. O'Brien Kelly four months after judgment was given, is relied upon as indicating the attitude of the parties at the time judgment was entered. This letter was written without reference to the respondents, who submit through their affidavits that its contents are not binding upon them. It is said before this Court by Mr. Budhdeo that any claim for specific performance would be a matter of contest on a reopening of the case pursuant to the granting of this application for review. He submits that the letter under reference should not be looked to as evidence of a subsequent admission as to the matter litigated (A. I. R. Commentaries, 5th edn., Vol. 3, page 3548). An attempt, he argues, is being made to obtain review on the ground that the terms of a consent judgment, clearly expressed before the Court at trial, were not the correct terms agreed upon at the time, and this Court is being asked to change its judgment and finally adjudicate in the terms now said to have been agreed and communicated to it for the first time, which would incidentally have the effect of frustrating the respondents' appeal.

I think there is substance in Mr. Budhdeo's submissions on the merits. Had the advocate for the applicants ascertained what had taken place earlier in the trial when Mr. Harragin appeared, he would not have been under any misapprehension leading him to think that it had already been communicated to the Court as being agreed between the parties that an order for specific performance should follow upon a finding of liability in damages on the single issue settled. Any such misapprehension should anyway have been dispelled when the judgment entered by consent on the record was read out. Further, had notice been taken of Order 20, rule 6 (1), it could not have been thought that the decree could contain an order for specific performance in view of the judgment entered as agreed. If there was a definite agreement that judgment should be entered in terms of paragraph (ii) $(c)$ of the prayer in the plaint, it is extraordinary that the advocate appearing on each side should not only have failed to make that clear but have conveyed something quite different to the Court. Then there is the extraordinary factor of a delay of nearly a year before taking any step for review, though notice of the appeal having been preferred was received as long ago as May, 1954. In so far as review is a matter of discretion, I would think this long delay in the circumstances would in itself justify a refusal of the application. But leaving that aspect aside, I am of the opinion that no sufficient ground has been shown to merit the granting of this application.

... In *Venkayya v. Suryanarayane and Others,* **A. I. R.** 27 Mad., (1940) 203, it ~ was held that: -

> "Where a specific question involved in an issue that was raised at the instance of the plaintiff has been abandoned as a result of an erroneous view taken by the plaintiff's pleader, the Court cannot interfere under Order 47, rule 1 (providing for review). Otherwise there will be no finality to the decision of a Court i( after judgment is pronounced the parties or advocates are allowed to come forward and say that certain argument was addressed or given up in the . course of the trial as . the result of their remembering certain material facts."

J n the course of his judgment the learned Judge said (at page 205): - .

"If applications for review are allowed on such grounds, there will be· no end to legal proceedings. The aggrieved party may have other remedies open to him but so long as the case does not fall within the purview of Order 47, rule 1, it will not be correct to· allow an application for review."

I think, with respect, that is plainly -right, and I do not discern any material difference in the instant matter where the applicants' advocate makes it clear that he took the course he did in consenting to the judgment entered, because he did not inform himself as to what had taken place earlier in the trial of the action, and was therefore under a misapprehension, and further took the erroneous view that the decree would provide for the additional relief and could **be** drawn up so as not to agree with the judgment. ·

The application is dismissed with costs.