JUDGMENT Doss, J. - This appeal is from a decision of the Subordinate Judge of Singhbhum in an action commenced by the Plaintiff for a declaration of his jote right in certain land in Mouzah Tentuldangri under the pro forma Defendant No. 4, the mokuraridar of the mouzah. The main defence of the Defendants was that the land in suit was part of Mouzah Bagula in which Defendant No. 1 had a khorposh right. On the 19th February 1906, the Court of first instance made an ex parte decree in favour of the Plaintiff. On the 9th March 1906, the Defendants made an application under sec. 108, C.P. Code, to set aside the ex parte decree and on the 29th idem preferred an appeal against the same to the Subordinate Judge. While this appeal was pending, the first Court on the 3rd April set aside the ex parte decree. Then on the 28th of July the appeal which was then pending in the Court of the Subordinate Judge was dismissed for default. Afterwards on the 13th of August, the first Court after trying the case de novo on evidence adduced by both parties held that the land in dispute appertained to Mouzah Bagula, belonging to the Defendants and accordingly dismissed the Plaintiff's suit. On appeal from that judgment by the Plaintiff the learned Subordinate Judge has held that during the pendency of the appeal from the ex parte decree, the first Court had no jurisdiction to hear the application under sec. 108, C.P.C., to set aside that ex parte decree and being of that opinion, he has held that the subsequent judgment by the first Court, dated 13th of August 1906, which was under appeal before him, was made equally without jurisdiction. He accordingly restored the ex parte decree and decreed the Plaintiff's suit. From this judgment, Defendant No, 1 has appealed to this Court, and it has been contended on his behalf that the learned Subordinate Judge was in error in holding that the first Court had no jurisdiction to deal with the application under sec. He accordingly restored the ex parte decree and decreed the Plaintiff's suit. From this judgment, Defendant No, 1 has appealed to this Court, and it has been contended on his behalf that the learned Subordinate Judge was in error in holding that the first Court had no jurisdiction to deal with the application under sec. 108, C.P.C., during the pendency of the appeal from the ex parte decree, and in the next place, it has been urged that the learned Subordinate Judge, while hearing the appeal from the judgment of the first Court, dated 13th August 1906, was error in going behind it and setting aside under sec 591, C.P.C., the order of the first Court, dated 3rd of April, setting aside the ex parte decree. I am of opinion that the first contention is right. In support of his view, the learned Subordinate Judge has relied upon two cases, namely, Mr. L.T. Lucas v. W. Stephen 9 W.R. 301 (1868) and Ramanadhan Chetti v. Narayanan Chetti ILR 27 Mad. 602 (1904). In the first case what was held was that after a special appeal from a decree had been admitted, an application for review of the judgment on which the decree is based should not be entertained. This was quite in accordance with the provisions of sec. 376, Act VIII of 1659, which was the CPC then in force. Sec. 376 of Act VIII of 1859 has substantially been re-enacted in sec. 623 of the present CPC and the statutory prohibition against the filing of an application for review of judgment after an appeal has been preferred from it is exactly the same under both the enactments. There is no bar to the filing of an application for review of judgment before an appeal from it has been preferred, nor was there any such bar under Act VIII of 1859. What we have to deal with here, however, is not an application for review of judgment after appeal from it has been admitted, but an application under sec. 108, C.P.G. to set aside an ex parte decree while an appeal from it is pending at the same time. What we have to deal with here, however, is not an application for review of judgment after appeal from it has been admitted, but an application under sec. 108, C.P.G. to set aside an ex parte decree while an appeal from it is pending at the same time. Under the present Civil Procedure Code, there is no prohibition against the filing of such application before an appeal from it has been preferred, nor is there any express provision in the Code as there is in the case of an application for review of judgment barring an application under sec. 108, C.P. Code, after an appeal from the ex parte decree has been presented. Moreover, there is no express provision in the Code which prevents the hearing of an application under sec. 108, C.P. Code, while an appeal from the ex parte judgment is depending or vice versa. The case of Ramanadhan Chetti v. Narayanan Chetti ILR 27 Mad. 602 (1904), no doubt, goes a step further. It lays down that while an appeal from a judgment is pending, the lower Court has no jurisdiction to bear an application for review of that judgment and this opinion is rested on the broad ground that when an appeal has been duly filed, all further litigation and all matters connected therewith are transferred to and placed under the control of the Appellate Court, and that the lower Court has, pending the decision of the appeal, no jurisdiction over the cause, and can, as a rule, pass no order therein. In Bharat Chandra Mazumdar v. Ramgunga Sen B.L.R.F.B.R., p. 362 (1866), a Full Bench of this Court presided over by Sir Barnes Peacock held with reference to the similar provision contained in secs. 373 and 376 of Act VIII of 1859 that if a review be applied for in proper time and before an appeal has been preferred, the Judge is not prevented from proceeding upon the application for review by the subsequent presentation of an appeal, and that he has full power and is bound to proceed upon the application for review. This case has been differentiated by the Madras High Court on the ground that the appeal (as the report of the case showed) had in fact been withdrawn before the application for review was finally dealt with. This case has been differentiated by the Madras High Court on the ground that the appeal (as the report of the case showed) had in fact been withdrawn before the application for review was finally dealt with. It appears to me, however, that though that was so, it clearly is not the ground upon which the judgment of the Full Bench was rested. It was placed upon the wider ground that a Judge is not prevented from proceeding upon the application for review by the subsequent presentation of an appeal. In America, the converse rule prevails. There a party cannot appeal when he has a bill of review pending in the Court below for the same errors of law which are sought to be reviewed on the appeal [see Maxwell v. Martin 35 W.Va. 384, 14 S.E. 7, Levy v. Lafountain 178 N.Y. 557; 81 App. Div. 636], the real object of the rule evidently being to avoid the confusion which would result from inconsistent decrees. Hence it has been held there that where a bill of review is filed not to correct errors of law but is founded solely on subsequent discovery of new evidence the pendency of the bill of review has not the effect of preventing the hearing of the appeal. See Gillespie v. Allen 37 W. Va. 675, 17 S.E. 184. In such a case the questions presented to the two tribunals by the separate proceedings have hardly anything in common and no confusion can arise from this separate determination. Similarly the matter for investigation in a proceeding under sec. 108, C.P. Code, is entirely distinct from and has indeed, nothing in common with the matter for determination, in the appeal from the ex parte judgment. The one is concerned with the due service on the Defendant of processes necessary for founding the jurisdiction of the Court over him or with the sufficiency or otherwise of the cause justifying his non-appearance in the suit; whereas the proper function of the other is the determination of the merits of the controversy between the parties. There is no possibility of any conflict arising between the judgments that may be pronounced in the two proceedings respectively. I am, therefore, of opinion that the first Court had perfect jurisdiction to hear the application under sec. 108, C.P. Code, during the pendency of the appeal. There is no possibility of any conflict arising between the judgments that may be pronounced in the two proceedings respectively. I am, therefore, of opinion that the first Court had perfect jurisdiction to hear the application under sec. 108, C.P. Code, during the pendency of the appeal. In this view it is unnecessary to discuss the second point raised on behalf of the Appellant or to express any opinion on it. For the foregoing reasons I am of opinion that the judgment of the learned Subordinate Judge ought to be set aside and the case remanded to him for deciding the appeal on the merits. The Appellant is entitled to have his costs of this appeal.