Mad., 131. Their Lordships of the Privy Council have used the word in this sense in several cases as opposed to irregularity in procedure-Ledgard vs. Bull, 13 Ind. App., 134; Pillai vs. Pillai, 2 Ind. App., 219, p. 233; and the term seems to bear the same meaning in section 5, Act VIII of 1859, (corresponding to section 11, ante)-Hurronath Roy vs. Scott, B. L. R. (F. B.), 636. There is another principle, that whenever jurisdiction is given to a Court by an enactment, and such jurisdiction is only given on certain specified terms contained in the enactment itself, these terms must be complied with, in order to create and raise the jurisdiction, for if they be not complied with, the jurisdiction does not arise-Nasserwanjee vs. Mynoodeen, 6 Moore, 134, p. 155. Thus, as an illustration of the first kind of jurisdiction, if the subject-matter of the litigation was not a suit, a Court of Appeal has no jurisdiction at all to entertain an appeal under section 540, ante-Meenakshi vs. Subramaniya, 14 Ind. App., 160; Ladli vs. Raje, I. L. R., 13 Bom., 651; and in regard to the second, a Court cannot give jugdment on an award unless under the provision of section 321, ante, declaring that to be valid it must have been made within the period allowed by the Court,-Har Narain vs. Chaudhrain, 18 Ind. App., 55, nor admit a review after 90 days without being satisfied, there is sufficient cause as directed by the Limitation Act-Luchman Singh vs. Shumshere, 2 Ind. App.,, 58 or in violation of section 629, post, prohibiting the review of an order passed in reviewMuhammad Yusuf vs. Abdul, 16 Ind. App., 104; the orders are without jurisdiction. And where the conditions required by this section did not exist, their Lord-ships of the Privy Council held that the Court had no jurisdiction in the case-Compare I. L. R., 7 Alla., 230; Amir Hassan vs. Sheo Baksh, 11 Ind. App., 237. See also Shiva vs. Joma, I. L. R., 7 Bom., 341, p. 358; Har Prasad vs. Jafar Ali, I. L. R., 7 Alla., 345; Dhan Singh vs. Basant, I. L. R., 8 Alla., 519. In all these cases the proceedings are void and the defect cannot be cured by consent.-Luchman Singh vs. Shumshere, 2 Ind. App., 58; Nasserwanjee vs. Mynoodeen, 6 Moore, 134; Ledgard vs. Bull, 13 Ind. App., 134.

This section applies to a case in which a Judge has exercised a jurisdiction which he has no power to exercise, or in which, in the exercise of a jurisdiction that he has, he exceeds his jurisdiction-In_re_Subjan Ostagor, B. L. R. (F. B.), 531; see also Peary Mohun vs. Harran Chunder, I. L. R., 11 Cal., 261; or has acted illegally or with material irregulariy-Muhomed Salaman vs. Fatima, I. L. R., 9 Alla., 105. Where an appeal is heard by a Court that has no jurisdiction, this section applies-In the matter of Rooknee Roy, 14 W. R., 254; and if a second appeal is preferred from this decision, the High Court may proceed under this section-Bhoyrub Chunder vs. Wajedunnissa, 6 C. L. R., 234; Shamrav vs. Niloji, I. L. R., 10 Bom., 200; Benode vs. Sharat Chunder, I. L. R., 8 Cal., 837; but see Durga Narain vs. Goburdhun, 9 C. L. R., 86; see also Doorga Narain vs. Ram Lall, I. L. R., 7 Cal., 330, referred to above.

If a Judge hears an appeal from the order of Deputy Collector in a rent-suit under Rs. 100 in value-Kristo Inder vs. Roopinee, 6 W. R., Act X, 56, or hears a Small Cause Court case in which an appeal does not lie-Bhowanee Pershad vs. Dhuram Narain, 3 W. R., 24, the orders passed will be set aside. And where the first Court acted without jurisdiction in entering into a question, and the superior Court wrongly heard an appeal from it, both orders were set aside-Annamali Chetti vs. Muthulinga, 6 Mad., 360.

Their Lordships of the Privy Council have, so far as I can find, have been slow to decide that the violation of any section of the Code bearing on the ordinary course of a suit from institution, to final execution affects jurisdiction, or is more than an irregularity. There are only two cases, one in regards to arbitration-Har Narain v. Bhagwant, 18 Ind. App., 55, and the other in connection with admitting a review after time-Luchmun Singh v. Shumshere, 2 Ind. App., 58, and it may be doubted if either falls within ordinary procedure from plaint to final disposal. See "POWER TO REVIEW," section 623, post.

Negative Words.--The words "shall be determined by order of the Court executing the decree, and not by separate suit" in Act XXIII of 1861, section 11, corresponding to section 244, ante, only relate to procedure-Chowdhry Wahed Ali vs. Musst. Jamaee, 11 B. L. R., 149; Purmessuree vs. Jankee Koer, 19 W. R., 90; Azizuddin vs. Ramanugra, I. L. R., 14 Cal., 605.

And where a sale took place within 30 days in contravention of the words, "the sale shall not take place until after the expiration of at least thirty days" in section 249 of Act VIII of 1859 (corresponding to section 290, ante), their Lordships of the Privy Council reversing the order of the High Court of Allahabad, held that the irregularity was cured by the certificate of sale-Balkrishna vs. Masuma, I. L. R., 5 Alla., 142, p. 157; and compare In re Southekul Krishna, 14 Ind. App., 154, p. 159; but see on the same point-Bhekraj Koeri vs. Genah Lal, I. L. R., 5 Cal., 878; Ganga Prasad vs. Jag Lal, I. L. R., 11 Alla., 333; Venkata vs. Sama, I. L. R., 14 Mad., 227; Nana vs. Golam, I. L. R., 18 Cal., 423; Bagal vs. Rameshur, Í. L. R., 18 Cal., 496. See also Lamb vs. Bijoy Kissen, 8 Moore, 427.

Positive Words.-A violation, of the "words may be payable" in section 11, Act XXIII of 1861, corresponding to section 244, ante, is a mere irregularity if the Court has general jurisdiction over the subject-matter of the suit-Pillai vs. Pillai, 2 Ind. App., 219; nor does a violation of section 139, Act VIII of 1859; section 146, ante, commanding the framing of issues-Mitna vs. Fuzl Rab, 13 Moore, 573, or of section 246, ante, which directs that execution shall only issue for the difference of the two amounts in cross

decrees-Rewa Mahton vs. Ram Kishen Singh, I. L. R., 13 Ind. App., 106, or of the provision of section 286, ante; directing that the sale-proclamation shall specify the revenue on an estate sold in execution of decree-Girdhari Singh vs. Hurdeo Narain, 3 Ind. App., 230; Olpherts vs. Mahabir Pershad, 10 Ind. App., 25, or of such portion of section 355, Act VIII of 1859, (corresponding to section 568, ante) as requires the Court to record its reasons for admitting new evidence rank higher-Gunga Gobind vs. The Collector of 24-Perghunnahs, 11 Moore, 345, p. 368. The nearest approach to the idea that any section describing the ordinary procedure in a suit is mandatory, is to be found in the case of Ram Dayal vs. Mahtab Singh, I. L. R., 7 Alla., 506; but even here the matter is treated as an irregularity before their Lordships of the Privy Council. See, however, Sant Lal vs. Umraounnissa, I. L. R., 12 Alla., 96; Rameshur Singh vs. Sheodin, I. L. R., 12 Alla., 510; Ganga Prasad vs. Jag Lal, I. L. R., 11 Alla., 333.

Failed to Exercise Jurisdiction.-This section extends to the case of a Judge refusing to act through a misconception of his authority-Shiva vs. Joma, I. L. R., 7 Bom., 341, p. 352. If a Judge should refuse restitution on the ground that it must be sought in a suit-Gobind Koomar Chowdry, Petitioner, B. L. R. (F. B.), 714; Nilmoni Singh vs. Taranath, I. L.R., 9 Cal., 295, pp. 297, 299, or to execute a decree on the ground that the had no jurisdiction-id.; Shamray vs. Niloji, I. L. R., 10 Bom., 200; or dismisses a suit holding there was no cause of action-Rama vs. Kunji, I. L. R., 9 Mad., 375, or refuses to listen to a charge of fraud as a ground for setting aside a sale-Subbaji vs. Srinivasa, I. L. R., 2 Mad., 264 (compare Birj Mohun vs. Rai Umanath, 19 Ind. App., 454), or wrongly thinks section 544 does not apply to an appeal in which it does apply-Seshadri vs. Krishnan, I. L. R., 8 Mad., 192, or declines to investigate a complaint under section 278, ante, Jumeda vs. Luchmun, 4 C. L. R., 74; his order may be set aside. But if a Judge exercises jurisdiction, though in an erroneous manner, this portion of the section does not apply-Rabbaba Khanum vs. Noorjehan, I. L. R., 13 Cal., 90; In re Bagram, 20 W. R., 10; Amir Hassan vs. Sheo Baksh, 11 Ind. App., 238; and see Krishna Mohini vs. Kedarnath, I. L. R., 15 Cal., 446; Amritrab vs. Balkrishna, I. L. R., 11 Bom., 489.

16.9.0.100

not. ( CR 74°

Acting Illegally.-The meaning to be attached to this portion of the section is not settled. matter if he heard any suit or other proceeding in which he was a party or personally interested, or if he heard an appeal against a decree or order passed by himself in another capacity--Act VII of 1887, section 38, or, possibly, if he imported into the case his own knowledge of particular facts-Hurpurshad vs. Sheo Dyal, 3 Ind. App., pp. 285-6; see "PERSONAL KNOWLEDGE," note to section 204, ante; but he cannot be said to have acted illegally if he merely errs in his final decision-Amir Hassan vs. Sheo Baksh, 11 Ind. App., 237; see, however, Manisha vs. Siyali, I. L. R., 11 Mad., 220, p. 229; but it has been held that if the decision has been arrived at by travelling beyond the issues-Gorakh vs. Vithal, I. L. R., 11 Bom., 435, or is unsupported by proof-Shields vs. Wilkinson, I. L. R., 9 Alla., 398, or it declares that by reason of a particular statute the suit does not lie--Jugobundhu vs. Jadu Ghose, I. L. R., 15 Cal., 47, that the Judge has acted illegally within this section. The application of the words "acting illegally" to procedure within jurisdiction is not easy. For if the law violated is mandatory, the violation affects jurisdiction, and if not, it is only an irregularity. It has, however, been used in the former sense by the Calcutta High Court, and the language has been approved of by their Lordships of the Privy Council-Luchmun Singh vs. Shumshere, 2 Ind. App., 58, p. 59; and see Muhammad Yusuf vs. Abdul, 16 Ind. App., 104; Manisha vs. Siyali, I. L. R., 11 Mad., 220, p. 229; Shri Vishrambhar vs. Shri Vasudev, I. L. R., 16 Bom., 708.

Material Irregularity. This means an irregularity in procedure which has produced error or defect in the decision of the case upon the merits-Badami Kuar vs. Denu Rai, I. L. R., 8 Alla., 111: Sew Bux vs. Shib Chunder, I. L. R., 13 Cal., 225; but see Manisha vs. Siyali, I. L. R., 11 Mad., 220.

Facts. As to whether the Court will consider the findings of fact arrived at by the Court below, see Mahammad vs. Syed Husain, I. L. R., 3 Alla., 203; Shields vs. Wilkinson, I. L. R., 9 Alla., 398; Manisha vs. Siyali, I. L. R., 11 Mad., p. 236, and compare the cases on the same point at home in connection with the issue of a writ of prohibition-The Liverpool Gas Co. vs. Everton, L. R., 6 C. P., 414; Bristowe vs. Rose, 4 Q. B. D., 4.

Such Order as the High Court thinks fit-Form of Order. The words in section 35, Act XXIII of 1861, were, "and the Sudder Court may set aside the decision passed on appeal in such case by the Subordinate Court, or may pass such other order in the case as such Sudder Court may seem right." Under this section it was held that where the lower Appellate Court exceeded its jurisdiction, the proper order was to set aside that portion of the order which was in excess of jurisdiction, and if the Court had not jurisdiction, the proper order was to set aside the decision altogether, and if thought proper refer the appeal to the Court which had jurisdiction, even if it were too late to prefer a fresh appeal to that Court-In re Subjan Ostagar, B. L. R. (F. B.), 531, p. 535; but if the original order was not subject to appeal, the Court in setting aside the decision on appeal, of a Court not possessed of jurisdiction, should not enter into the question of the merits in order to determine if the first order were correct or not-In re Docowri

1.arn. 633.

Kazi, B. L. R. (F. B.), 517; see also Girdhari Singh vs. Hurdeo Narain, 3 Ind. App., 230, p. 238. And where the order of the Full Court of a Small Cause Court was set aside under this Code for material irregularity, the Court thought the proper order was to remit the case to the Full Court to dispose of the case according to law-Ralli vs. Parmanand, I. L. R., 13 Bom., 642, and see Seshadri vs. Krishnan, I. L. R., 8 Mad., 192. In the North-West it has been decided that the High Court may, under this section, pass any order which it might pass on second appeal-Muhammad vs. Syed Husain, I. L. R., 3 Alla., 203; see, however, Shiva vs. Joma, I. L. R., 7 Bom., p. 354; In re Dacosta, B. L. R. (F. B.), 432; Har Prasad vs. Jafar Ali, I. L. R., 7 Alla., p. 349; and where the decisions of both the Courts were without jurisdiction, the Court set aside both decisions and returned the plaint-Sarnam vs. Sakina, I. L. R., 3 Alla., 418. So where the Court after considering the evidence came to the conclusion that it was sufficient to justify the Judge in allowing the case to go to a Jury, it set aside the decree and dismissed the suit-Shields vs. Wilkinson, I. L. R., 9 Alla., 398.

No Order.-See Subbaya vs. Yellama, I. L.R., 9 Mad., 130; Lengamma vs. Venkatammal, I. L. R., 6 Mad., 227; Doorga Narain vs. Ram Lall, I. L. R., 7 Cal., 330; Ram Sahai vs. Manram, I. L. R., 5 Cal., 807; Sotish Chunder vs. Nil Comul, I. L. R., 11 Cal., 45.

Case.--Compare Chatterpal vs. Raja Ram, I. L. R., 7 Alla., 661; Dhapi vs. Ram Pershad, I. L. R., 14 Cal., 768, and Hazari Lal vs. Kheru, I. L. R., 3 Alla., 576, with Meenakshi vs. Subramaniya, 14 Ind. App., 160; and Balkaran vs. Gobindnath, I. L. R., 12 Alla., 129, p. 157; and see Sundar Das vs. Mansa Ram, I. L. R., 7 Alla., 407; Sheo Prasad vs. Kastura, I. L. R., 10 All., 119.

PART VIII.

CHAPTER XLVII.

OF REVIEW OF JUDGMENT.

623. Any person considering him

self aggrieved

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

(c) by a judgment on a Reference from a Court of Small Causes,

and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him,

may apply for a review of judgment to the Court which passed the decree or made the order, or to the Court, if any, to which the business of the former Court has been transferred.

A party who is not appealing from a decree may apply for a review of judgment notwithstanding the pendency of an appeal by some other party, except when the ground of such appeal is common to the applicant and the appellant,

or when, being a respondent, he can present to the Appellate Court the case on which he applies for the review.

Act VIII of 1859, section 376. This section applies to H. C. and P. S. C. C. Power to Review.-Does not exist save by Statute and of an order properly made -Drew vs. Willis, Q. B. (1891), 452.

Does not Apply.-It does not apply to proceedings before the Special Commissioner under the Deccan Agriculturist's Relief Act-Babaji vs. Babaji, I. L. R., 15 Boni.,

650.

Review of Judgment.-A review is perfectly distinct from an appeal; the primary intention of granting a review was a reconsideration of the same question by the same Judge, as contradistinguished to an appeal which is a hearing before another tribunal. We do not say that there might not be cases in which a review might take place before another and a different Judge; because death or some other unexpected or unavoidable cause might prevent the Judge who made the decision from reviewing it but we do say that such exceptions are allowable only ex-necessitate. We do say that, in all practicable cases, the same Judge ought to review-Moheshur Sing vs. Bengal Government, 7 Moore, 283, p. 304. See also In re Appa Rao, I. L. R., 10 Mad., 73; 13 Ind. App., 755; and I. L. R., 14 Mad., 439. The spirit of the decision in 7 Moore is embodied in section 624, post.

Section 206, Ante.-An application under section 206 ante, to rectify a clerical mistake is not properly an application for review-Joykishen vs. Ataoor Rohoman, I. I R., 6 Cal., 22.

Any Person Considering Himself Aggrieved.-Review can only be granted by a person who is a party to the suit, and aggrieved by it, if any other person is aggrieved he must bring a regular suit. See "WHO MAY APPEAL," section 540, ante.

Decree or Order.-The old law referred only to decrees. But it was held that under it a Judge had power to review an order passed confirming a sale in execution of decree-Girdhari Singh vs. Hardeo Narain, 3 Ind. App., 230, and where a Judge rejected an application for registration under section 76 of the Registration Act of 1871, their Lordships of the Privy Council decided that the order being a final adjudication between the parties was so far in the nature of a "decree" as to fall within the sections of Act VIII of 1859 providing for review-Reasut vs. Abdoollah, id, 221, p. 227. So a review was admissible in proceedings under Act XXVII of 1860, Bengal, though not in Madras-Poona Koer, Petitioner, I. L. R., 1 Cal, 101; Rumkin, Petitioner, I. L. R., Alla., 287.

Ex-parte Decree.-An ex-parte decree is subject to review-Amir Hasan vs. Ahmad, I. L. R., 9 Alla., 36, although the case may be heard under sections 108 and 109, ante, Mutto vs. Ilahi Begam, I. L. R., 6 Alla., 65; Hari Har vs. Buldeo, 13 C. L. R., 254. See also Poresh Nath vs. Khettro Monee, 20 W. R., 284.

Order. The order must be one passed in a suit or proceeding of a civil nature— Meenkashi vs. Subramaniya, 14 Ind. App., 160, p. 166: Smith vs. The Secretary of State, I. L. R., 3 Cal., 340, p. 346. An order under section 5 of the Court-Fees Act is not a decree or order under this section-Balkaran vs. Gobindnath, I. L. R., 12 Alla., 129, 157; but an order under section 409, ante,—Adarji vs. Manikji, I. L. R., 4 Bom., 414, an order ex-parte, admitting an appeal after time-Venkatrayuda vs. Nagada, I. L. R., 9 Mad, 450, an order under section 596, ante-Gopinath vs. Goluckchunder, I. L. R., 16 Cal., 292, and an order under section 62, Act II of 1874 is subject to review-Smith vs. The Secretary of State, I. L. R., 3 Cal., 340.

Appeal Allowed; but not Preferred. After an appeal has been preferred no review can be admitted-Navivahoo vs. Turner, 16 Ind. App., 157; I. L. R., 13 Bom., 520. But if the review has been applied for in proper time and before an appeal has been preferred, the Judge is not prevented from proceeding on the application for review by the subsequent presentation of an appeal, but is bound to come to a decision upon itBharat Chunder vs. Ramgunga, B. L. R. (F. B.), 362; Thacoor Prasad vs. Baluck Ram, 12 C. L. R., 64.

Appeal by some other Party.-Where the grounds of review are common to all and one appeals on this ground the Appellate Court can modify the decree in regard to all, and if this is not so, the decree can be modified on review-Pegoo vs. Waizooddeen 18 W. R., 464.

Withdrawal of Appeal -If an appeal is withdrawn either party may apply for review in the lower Court-Pandu vs. Devji, I. L. R., 7 Bom., 287.

Court of Small Causes.-The provisions of section 17, of the Provincial Small Cause Court Act are only directory-Ramasami vs. Kurisu, I. L. R., 13 Mad., 178; not

followed Jogi Ahir vs. Bishen Dayal, I. L. R., 18 Cal., 83. The Court of a Subordinate Judge invested with the powers of a Small Cause Court Judge does not fall within clause (c)-Ramchundra vs. Sitaram, I. L. R., 10 Bom., 68.

New and Important Matter or Evidence.-In 1874 A sued B to recover money paid for land and got a decree. B appealed to the Privy Council. Subsequently A sued again on account of a second payment and recovered on the strength of the former decree. Their Lordships of the Privy Council reversed the first decree and it was held that their Lordships' decision was "new and important matter" on which to apply for review of the second decree-Waghela vs. Masludin, I. L. R., 13 Bom., 330, but see Amrit Lal vs. Madho, I. L. R., 6 Alla., 292.

The new evidence must be relevant, clear and conclusive-Heera Lal vs. Ram Taruck, 23 W. R., 323. It need not be sufficient per se to show that the previous decision is wrong or that it must be such as to cause an overpowering balance of evidence in favour of the applicant Sahebjan vs. Sufdur Ali, 22 W. R., 288; but it must be material and of such a character that if it had been brought forward in the suit it might have altered the judgment-Hosking vs. Ferry, 15 Moore (P.C.), 598; In re Appa Rao, I. L. R., 10 Mad., 73; 13 Ind. App., 155.

Bhyrub

Special Appeal. -- New evidence is not a ground for review in special appeal Nath vs. Kally Chunder, 16 W. R., 112; Jackammal vs. Palneappa, 5 Mad., 464, and in Bombay the practice has been to allow the appellant to withdraw his appeal and then apply for a review to the lower Court-Pandu vs. Devji, I. L. R., 7 Bom., 287.

When the Decree was Passed.-It must be shown that the new matter or evidence was not within the knowledge of the applicant, or if within his knowledge could not be produced by him at the time the decree was passed-Dwarkanath vs. Kishenlall, Marsh., 553; Omrao vs. Gocool, 16 W. R., 7.

Error of Law Apparent on the Face of the Record -It is not an universal rule that no point can be raised on application for a review which has been already discussed and decided at the hearing, or that no new point which has not been raised at the hearing of the case can be argued on the application for a review-Chintaman Pal vs. Pyari Mohun, 6 B. L. R., 126; Kalu vs. Vishram, I. L. R., 1 Bom., 543; but see Sheo Ratan vs. Lappa Kuar, I. L. R., 5 Alla., 14; but if the basis of the review was raised but abandoned at the hearing of the appeal, it should not be allowed to prevail-Satapathi vs. Subraya, I. L. R., 2 Mad., 58. Nor is it an objection that the error was brought to notice by a new decision -Villaya vs. Jaganatha, I. L. R., 7 Mad., 307; Jonmenjoy vs. Dassmoney, I. L. R., 8 Cal., 700; if the application has been made regularly within time-Harihar vs Madhab Chundra, 8 B. L. R. (P.C.), 566, p. 580. See also Muhammad Yusuf vs. Abdul, 16 Ind. App., 104; but see Ellem vs. Basheer, I. L. R., 1 Cal., 185. Where a Judge gives wrong reasons for rejecting material evidence-Reasut vs. Abdoollah, I. L. R., 2 Cal., 130, p. 140, or omit to consider the effect of important evidence-Mahadeva vs Sappani, I. L. R., 1 Mad., 396; or is misled as to the contents of a document-Gopal Chandra vs. Solomon, I. L. R., 13 Cal., 62; or applies a wrong rule in valuation-Kalu vs. Vishram, I. L. R., 1 Bom., 543, or omits to try a material issue-Hassan Ali vs. Nassirooddeen, 16 W. R., 136, or has made an error in calculation-Mirza Aklur vs. Mullick Makdoom, 25 W. R., 63. The proper remedy is by review and not by special appeal.

In the North-West Provinces a review will not be allowed on grounds that would support an appeal-Sheo Ratan vs. Lappa Kuar, I. L. R., 5 Alla., 14; though in a later case a review was allowed on the grounds, that the order had been passed ex-parte, and without jurisdiction-Amir Hasan vs. Ahmad, I. L. R., 9 Alla., 36.

Other Sufficient Reason.-In the case of Reasut vs. Abdoollah, I. L. R., 2 Cal., p. 140, 3 Ind. App., 221, their Lordships of the Privy Council state "they are not prepared to say that there is an absolute defect of jurisdiction whenever the parties have failed to show that there was either positive error in law, or new evidence to be brought forward which could not be brought forward on the first hearing. They do not consider the case in the Indian Jurist (Nasiruddin Khan vs. Indronarayan, 1 Ind. Jur., 147) and the other cases cited, limit the discretion of the Court in saying what reason is good and sufficient, or what may be so far requisite to the ends of justice as to support an application for review. Upon an appeal, where an appeal lies, it may be open to the Court of Appeal to say that a Judge ought not to have admitted a review; that is a different thing from ruling that he has acted wholly without jurisdiction. In the first case the Appellate Court reverses the order, because the Judge has erred in the mode in which he has exercised a judicial discretion; in the latter case it quashes the order because he has no discretion at all to be exercised." A misapprehension at trial of all parties as to the contents of a document provided its purport could not be known by the exercise of due deligence-Gopal Chandra vs. Solomon, I. L. R., 13 Cal., 62, p. 64; or if material, omitting to consider it-Mahadeva vs. Sappani, I. L. R., 1 Mad., 396; discrediting without inspection a document, or declaring a Commissioner unworthy of credit, because he was a mohurir of the Court-Abdool vs. Bacha I. L. R., 1 Alla., 363; raising a point for the first time in delivering judgment-Gunga Pershad vs. Maharani,