Lawrence Jenkins, C J

[1] This application is made to us under Section 622 of the Code of Civil Procedure, and it arises out of an application made to the Subordinate Judge under Section 373 of the Code.

[2] The whole difficulty arises from the omission to observe what are the precise provisions of Section 37

3. It contemplates a withdrawal not of the suit but from the suit, and such a withdrawal may be either with or without liberty to bring a fresh suit. If a party desires to withdraw from the suit with such liberty, then he must apply to the Court to permit him so to withdraw. If he does not desire to have that liberty, then he can withdraw of his own motion and no order of the Court is necessary.

[3] Now in this case the Subordinate Judge has passed an order in these terms; The suit may be withdrawn. No permission need be granted as the amount in dispute is very small compared with the main corpus of the endowment. Plaintiff is to bear all costs and to pay all costs. No special reason is shown to depart from the usual rule".

[4] It is contended before us by the opponents, and the applicant accepts the contention, that the reference to costs is to the costs mentioned in the second paragraph of Section 37

3. The plaintiff did not require leave to withdraw from the suit unless accompanied Avith liberty to bring a fresh suit, and as the Subordinate Judge considered that he ought not to give that liberty, he ought simply to have dismissed the application. Now it is clear that he had no power to make the order he did as to costs unless plaintiff had withdrawn from the suit. But the plaintiff had not withdrawn from the suit. All he did was to apply to the Court for the permission to withdraw from the suit with liberty to bring a fresh suit. The Judge had no right to assume that the plaintiff had withdrawn from the suit when he refused to him the liberty which was the sole purpose of his application.

[5] The rule accordingly will be made absolute with costs, and the order will be varied by substituting therefor an order in these terms: The application for permission to withdraw from the suit with liberty to bring a fresh suit for the subject-matter of the suit is dismissed with costs.

[6] The result will be that the case must be restored to the file.