[These Second Appeals first came on for hearing on the 8th and 9th days of August 1916 before their Lordships Spencer and Krishnan, JJ.

Spencer, J. - Original Suit No. 430 of 1909 on the file of the District Munsifs Court of Sompeta was a suit brought for recovery, of possession of certain lands. The suit was dismissed with costs as there was nothing on the record to show how the 1st defendant got title from the purchaser at Court auction and as the plaintiffs only title was that derived from the 1st defendant. The plaintiffs appealed and the District Judge permitted the appeal to be withdrawn with liberty to bring a fresh suit. As observed by the Subordinate Judge, the granting of permission to withdraw the appeal was a clerical error, and we must take it that what the learned District Judge intended was to set aside the decree of the Original Court and to permit the suit to be withdrawn. The appeal was allowed to that extent. The plaintiffs brought a fresh suit, Original Suit No. 203 of 1912 and succeeded generally both in the Original and Appellate Courts.

It is now contended in these appeals that an Appellate Court has no power to allow a suit to be withdrawn with liberty to file a fresh suit. In support of this, the appellants pleader relies on the decision in Choragudi Chinna Kotayya v. Raja Varadaraja Appa Row (1 L.W., 613) and on the following observation in Eknath v. Ranoji (I.L.R., 35 Bom.,261):It is clearly, we think, beyond the power of the Court to allow a withdrawal from a suit with leave to file a fresh suit on the same cause of action after the defendant has obtained a decree in his favour. This observation was of the nature of an obiter dictum in that case. The correctness of the decision, so far as it decided that before the admission of the appeal the Appellate Court had no power to make an order of this nature cannot be doubted. In Afzal Begam v. Akbarl Khanam (I.L.R., 37 All., 326), the decision of this Court in I.L.W., 613 has been considered and dissented from. The learned Judges of the Allahabad High Court followed a previous decision to the same effect in Ganga Ram v. Data Ram (I.L.R., 8 All., 82) and they further relied on the practice of the Allahabad Courts to give such a permission even in appeal. In Veera Reddy v. Akka Reddy (28 Ind., Cas., 487) Sadasiva Aiyar, J. sitting as a single Judge has doubted the correctness of the decision in 1 L.W., 613.

The exercise of this power by virtue of Sect. 107, cl.(2), Civil Procedure Code (old Sect. 582) by the Appellate Court as a matter of practice is conceded by the learned Judges who decided the case in 1 L.W., 613. In Chidambara Mudali v. Kozhandavelu Mudali ([1912] M.W.N., 1003) the power was exercised even in second appeal; but the jurisdiction of the Court to make such an order does not then seem to have been questioned, nor was it questioned in Jogodindro Nath v. Sarut Sunduri Debi (I.L.R., 18 Cal., 322) [LQ/CalHC/1891/19] , in which the practice was recognised. In Kali v. Panchanan (23 C.L.J., 489), it was held that the fact that the plaintiff was not able to adduce all the evidence which he would have liked to adduce at the first hearing was not a good ground for an Appellate Court permitting the plaintiff to withdraw from the suit and bring a fresh suit and therefore such an order was without jurisdiction. Similarly in Tirupati v, Muttu (I.L.R., 11 Mad., 322) it was held that an order passed by an Appellate Court permitting a plaintiff to withdraw his suit with permission to bring a fresh suit was bad if no reasons were assigned for the order.

In the present case, the permission was granted in order to permit the plaintiffs to redraft their plaint in such a manner as to contain certain necessary allegations for indicating more clearly what their fathers title was, and this appears to me to be a good ground for the order in the circumstances of this case.

With due respect to the learned Judges, I am unable to follow the reasoning in 1 L.W., 613.

As I understand the judgment, the main arguments are that the language of O. 23, R. 1, is such as to apply only to a pending suit and that after a suit has terminated in a decree, it is not open to any Court to grant the required permission; secondly that if the word appeal is substituted for the word suit, wherever it occurs, the rule will read at any time after the institution of an appeal the plaintiff *** may withdraw his appeal, and that this reading will not give the plaintiff the remedy he requires.

The answer to the first objection seems to me that when an appeal has been admitted the whole suit is reopened and there is no certain finality about the decree in existence until the Appellate Court pronounces one.

The second objection is in my opinion, which I hold with due respect, based on a misconception of what Sect. 107, cl. 2 lays down.

Subject to certain conditions and limitations it declares that the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred on and imposed by this Code on Courts of Original Jurisdiction in respect of suits instituted therein.

Rule 11 of O. 22 which says in the application of this Order to appeals, so far as may be , the word plaintiff shall be held to include an appellant, the word defendant, a respondent, and the word suit an appeal does not occur in O. 23.

Therefore in considering what are the powers of an Appellate Court under O. 23 which deals with the withdrawal and adjustment of suits, there is no necessity to go through a strict process of altering the word suit into the word appeal wherever it occurs.

A comparison of the sections of the Old Code dealing with this matter with the provisions of the New Code does however throw light on the question.

Sect. 375A which runs thus:Nothing in this chapter shall apply to any application or other proceeding in any suit subsequent to the decree with an explanation attachedAn application to the Appellate Court pending an appeal is not an application subsequent to the decree appealed from within the meaning of this section was added by Act VI of 1882, Sect. 2 and has disappeared in the Code of 100

8. In its place we have O. 23, R. 4-.Nothing in this Order shall apply to any proceedings in execution of a decree or order.

The explanation to the old section in terms answered the objection that applications to withdraw the suit cannot be made in appeal because they are subsequent to the decree.

It recognized the practice of withdrawing suits with the Courts permission after they have reached the stage of appeal.

The new rule declares that the plaintiff cannot have this privilege when his suit has reached the stage of execution. This rule seems to have been introduced in consequence of the decisions in Radha v. Radha (I.L.R., 18 Cal., 515) [LQ/CalHC/1891/47] and Lachtni v. Atchanna (I.L.R., 16 Mad., 240) and Tarachand v. Kashinath. (I.L.R., 10 Bom., 62)

The fact that the exercise of the right when the suit is in the stage of appeal is not expressly negatived favours the theory that what is not expressly withdrawn may be presumed to continue to exist.

As cases not infrequently occur in which the exercise of the supposed power to withdraw suits with liberty to sue again is attempted, and as the question is of considerable importance, we refer for the decision of a Full Bench the question whether an Appellate Court has the power for proper reasons to allow a suit to be withdrawn with liberty to file a fresh suit.

Krishnan, J. I agree to the order of reference to the Full Bench as proposed by my learned brother.

The District Judges order passed at the hearing of the present respondents appeal, allowing their suit to be withdrawn with liberty to file a fresh suit must be taken to have in effect set aside the decree of the First Court dismissing the suit or annulled it and to have allowed the appeal to that extent though the order does not expressly say so. See the observations of Tyrrell, J., in Ganga Ram v. Data Ram (I.L.R., 8 All., 82).

The order was passed under R. 1, O. 23, read with 107, cl

. (2) of the new Code, which was in force at the time. The suit now in the Second Appeal before us was brought in pursuance of the leave so granted. Defendants (appellants) contend that the Appellate Court had no power whatever in any case to act under the rule referred to, that even if it could so act there were no proper grounds to justify its action, that it is open to them in the present suit to impugn the order on both the grounds above stated, that it should be treated as a nullity and that the present suit should be dismissed as barred by the previous suit on the same cause of action.

It will be convenient to consider first how far it is open to the appellants to impugn the order in this suit. It seems to me if the order had been passed with jurisdiction it is not open to us now to consider the propriety of it on the merits. Where a Court which has power to act under R. 1, O. 23 has exercised its discretion and passed an order under it, the fact that it was passed for insufficient reason does not, it seems to me, make the order one passed without jurisdiction. There is no question of defect of jurisdiction though the order may amount to an irregularity. This was the view taken in Tirupati v. Muttu (I.L.R., 11 Mad., 322) It was held that the propriety of the order could not be questioned in the 2nd suit in Perumal v. Karupan (21 M.L.J., 574), and also in Chhajju v. Khyali Ram (14 I.C., 175). The only authority to the contrary cited before us is the case in 23 C.L.J., 48

9. With all respect to the learned judges in that case, I am unable to agree with the view that the jurisdiction of the Court to pass an order under the rule in question depends on the existence of proper grounds for the order allowing the withdrawal with liberty. Under the rule as enacted, when the Court passing the order is satisfied that there are sufficient grounds it has the power to pass the order granting permission for a fresh suit; so that the erroneousness or insufficiency of the grounds on which the Court is so satisfied is not a matter affecting the jurisdiction of the Court. The weight of authority is against the view taken in the Calcutta case and I respectfully dissent from it, and follow the ruling of this Court with which I respectfully agree.

If, however, it is open to us to consider the propriety of the order of the District Judge now, the case in 8 All., 82 already cited is an authority for holding that there was proper ground in this case for the order made, as the plaintiffs first suit was going to fail for the formal defect that his plaint did not properly set out his title.

If the appellants contention that an Appellate Court has no power to act under E. I, O. 23, its application being confined to the Court of First instance is correct, then the order in question here will be one passed without jurisdiction and must be treated as non est. The case cited in Watson v. The Collector of Rajshahye (13 M.I.A., 160) is, I think, a sufficient authority for holding that an order passed without jurisdiction can be treated as a nullity in a subsequent suit. The question then is whether the Appellate Court had no power to act under R. 1, O. 23. The case in 1 L.W., 613 supports the appellants argument that no such power exists. With great respect to the learned Judges who decided that case I agree that the ruling should be reconsidered. It was doubted in Veera Reddy v. Akka Reddy (I.L.R., 37 All., 326) and dissented from in A fzal Begam v. Akbari Khanam (28 I.C., 487). The ruling in I.L.R., 8 All., 82 which expressly held that the Appellate Court had such power under Sect. 373, Civil Procedure Code corresponding to the rule in question does not seem to have been brought to the notice of the Judges. No previous decisions are cited in support of their view except the case in Eknath v. Ranoji (I.L.R., 35 Bom., 261) which I shall consider later. Admittedly it is against the existing practice.

That decision holds on a consideration of the language of the rule that it cannot be extended to a suit in which a decree has already been passed; by this the learned Judges seem to mean that the exercise of the power is confined to a stage before the passing of any decree at all in the suit. I am unable to follow the argument that the language of the rule leads to such an inference. It may at the most point to a stage before a final and subsisting decree is passed in the case and not merely a first decree. The costs referred to in cl. (3) are what the Court awards when passing the order. They cannot be said to have been provided for already unless there is a subsisting decree. The withdrawal of a part of the claim stands on the same footing as the withdrawal of the whole; of course neither can be withdrawn if there is a subsisting decree. Where there is no subsisting decree I can see no difficulty at all in either case. Even apart from the language of the rule itself it is clear as explained by Tyrell, J., in I.L.R., 8 All., 82, a suit cannot be withdrawn after it has terminated in a final decree; for so long as that decree is subsisting and operative the withdrawal will be against the terms of that decree. I do not think the language of the rule means anything more.

A decree once passed by a Court can be set aside by that Court itself either on review or under O. 9, R. 13 if it was an ex parte decree; or its decree may be set aside by an Appellate Court and the case remanded for rehearing. In all these cases in spite of the fact that a decree was once passed the suit again becomes pending in the trial Court and it cannot be contended that that Court could not act under the rule at that stage. It will thus be seen that the fact that a decree has once been passed is of no importance provided that it is not a subsisting decree when the permission for withdrawal is given.

Under Sect. 107, cl

. (2) of the Code of Civil Procedure, the Appellate Court has the same powers as are conferred by the Code on the Court of Original Jurisdiction in respect of suits. As the First Court can act under E. 1, O. 23 when there is no subsisting decree, the Appellate Court can also do the same provided it sets aside the decree of the First Court as it has power to do. The Appellate Courts power is derived from the section and not by a process of substituting the word appeal for the word suit wherever it occurs in E. 1, O. 23 as is suggested in the ruling under consideration.

With due respect it seems to me that the ruling in I.L.R., 35 Bom., 261 has been misunderstood in 1 L.W., 613. In that case the District Judge gave leave under E. 1, O. 23 to the plaintiff before the admission of his appeal and without notice to defendant. There was a subsisting decree of the First Court which the District Judge did not and was not in a position to set aside as the appeal had not even reached the stage of admission. The High Court was right in holding that the District Judge had no power to allow the suit to be withdrawn with liberty as there was a decree in defendants favour. The language used in the High Courts judgment must be read with reference to the facts of the case.

I am therefore constrained to think that the ruling in 1 L.W., 613 is not correct and that the Appellate Court has powers for proper reason to allow a suit to be withdrawn with liberty to bring a fresh suit.

I therefore agree to the reference as already stated.

[These Second Appeals came on for hearing as per above order on 28th November 1916 before the Full Bench as constituted above.]

[1] We agree with the learned Judges who made the reference that it is open to an Appellate Court in proper cases when reversing the decree of the lower Court to give the plaintiff leave to withdraw the suit with liberty to file a fresh suit.