Dawson Miller, C.J.The suit out of which this reference arises was instituted by the respondents before the Munsif at Arrah claiming possession of certain lands on the grounds that they were their Zerait and not the Kasht lands of the defendants. They were met by the objection that the matter was res judicata, on the ground that the plaintiffs claimed the same relief against the same defendants in a previous suit before the Munsif at Sassaram and had withdrawn that suit, and that although leave had been given on that occasion to institute a fresh suit, such leave was granted without jurisdiction and could be treated as a nullity in any subsequent proceedings.

2. It appears from the record of the earlier suit that during the hearing a petition was presented by the plaintiffs under Order XXIII, Rule 1, of the CPC to the following effect:

In the suit there were some legal defects for which reason there is difficulty in maintaining the suit. For this reason I pray that permission may be granted to withdraw the suit with liberty to bring a fresh suit.

3. The Munsif allowed the application and passed an order in these terms:--

Suit allowed to be withdrawn with permission to bring fresh suit subject to limitation. Defendant will get costs.

4. Subsequently the present suit was instituted and the objection mentioned was taken. It was urged that no reason had been given in the order made by the Munsif in the previous suit and that the Court was entitled in the subsequent suit to consider whether in fact the conditions mentioned in Clauses (a) and (b)of Order XXIII, Rule 1(2), existed. The Munsif held that he could not question the legality of the order made in the previous suit and overruled the objection. He also found for the plaintiffs on the other issues and made a decree in their favour. On appeal the Subordinate Judge considered that the order permitting the plaintiffs to withdraw the previous suit with permission to bring a fresh suit was irregular as it did not disclose the grounds on which the permission was given, and that it was open to him to consider whether there were sufficient grounds for giving the permission. In the result he considered that there was a formal defect within the meaning of Order XXIII, Rule 1(2)(a), and dismissed the appeal. The defendants appealed to the High Court and contended that the present suit was not maintainable, inasmuch as the order permitting the plaintiffs to withdraw the previous suit with liberty to institute a fresh suit was without jurisdiction. The case came before a Division Bench consisting of Das and Adami, JJ,, who were of opinion that the procedure adopted by the Subordinate Judge could not be supported as it was not within the competency of the Court trying the subsequent suit to consider whether the order made under Order XXIII, Rule 1, in the original suit was properly made, The Division Bench considered that whether the order was right or wrong the Court had jurisdiction to make it and it could not be called in question in a subsequent suit. They accordingly were of opinion that the appeal should be dismissed.

5. A different view, however, had been expressed in two earlier cases in this Court, Satyabadi Gountia v. Badiadhar Bar Panda 46 Ind. Cas. 392 : 3 P.L.J. 404 and Rama Singh v. Janak Singh 56 Ind. Cas. 697 : 1 P.L.T. 300 : (1920) Pat. 232 : 2 U.P.L.R. (Pat.) 121. The Division Bench, therefore, referred the case to a Full Bench for decision, formulating the following points of law for consideration:

1. Can an order granting the plaintiff permission to withdraw from a suit with liberty to institute a fresh suit in respect of the subject-matter of such suit be said to be an order without jurisdiction, if it is passed under circumstances not contemplated by Order XXIII, Rule 1 of the Code

2. Can such, an order be treated as a nullity in a subsequent suit between the parties in respect of the subject matter of the first suit

6. Order XXIII, Rule 1, provides as follows:

(1) At any time after the institution of a suit the plaintiff may, as against all or any of the defendants, withdraw his suit or abandon part of his claim.

(2) Where the Court is satisfied-

(a) that a suit must fail by reason of some formal defect, or

(b) that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim,

it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of a claim.

6. The first question formulated for our decision assumes that the order was passed under circumstances not contemplated by Order XXIII, Rule 1 of the Code. By this I understand that the circumstances there referred to are confined to those mentioned in Clauses (a) and (b) of Rule 1, Sub-Rule (2) of the Order, and do not include a case where the Court making the order is not satisfied that the circumstances mentioned in Clauses (a) or (b) exist. If the Court is not satisfied that the circumstances contemplated in the rule exist, then, in my opinion, it has no jurisdiction to make the order, as the jurisdiction is only conferred where the Court is so satisfisd. If this condition is not fulfilled, I think it is clear that the jurisdiction does not arise. In all cases, however, where an order under the rule is made, it must be presumed, in the absence of proof to the contrary, that the Court was satisfied that the conditions in one or other of the Sub-rules (a) or (b) existed. Otherwise it is hardly conceivable that it would have made the order. In order successfully to challenge the jurisdiction it is not, in my opinion, sufficient merely to point out that no reasons are assigned by the Court in making the order. In the present case the Munsif acted with the petition before him and it must be presumed, in the absence of any evidence to the contrary, that the circumstances mentioned in the rule existed at least to his satisfaction. Once this is conceded, as I think it must be, it follows in my opinion that the Munsif had jurisdiction to make the order and it is not open to the Court in the subsequent suit to question the proprietary of his decision, or to consider whether in fact there existed a formal defect or other sufficient ground for the order. Where jurisdiction is conferred to determine a particular question and the Court having jurisdiction determines it, it can hardly be disputed that the decision is binding upon the parties, whether right or wrong, until it is set aside by some process known to the law in that suit. This may be done either by review of judgment or by appeal or revision, where such procedure is permitted by law in the particular case. It cannot be done in a collateral proceeding. To hold otherwise would be to destroy the finality of all legal proceedings and to render a determination of rights by a Court of Law impossible.

7. There was formerly some conflict of opinion in the High Court at Calcutta as to how far an order made under Order XXIlI, Rule 1(2), could be called in question in a subsequent suit brought in pursuance of the leave granted by the order: but in the most resent decision of that Court the authorities were reviewed and it was laid down by a Full Bench, consisting of the Acting Chief Justice and four Judges, that the Court trying the subsequent suit is not competent to enter into the question whether the Court which granted the permission to bring a fresh suit had properly made each order Hridayanath Roy v. Ram Chandra Barua Sarma 58 Ind. Cas. 806 : 24 C.W.N. 723 : 31 C.L.J. 482 : 48 C. 138. It is important to bear in mind that in that case the Court found that the Judge who made the order in the previous suit was satisfied, rightly or wrongly, that circumstances existed which justified such an order and held that jurisdiction arose if he was so satisfied and added: It is plain that, however erroneous the order may be, it is not an order made by a Court without jurisdiction it is on the other hand an order made by a Court of competent jurisdiction acting with material irregularity in the exercise of its jurisdiction. The order cannot consequently be deemed null and void. The party aggrieved may directly impugn the order and may in an appropriate proceeding invoke the aid of a superior tribunal to set aside the order...but till it has been so vacated, it is operative between the parties and cannot be ignored or challenged collaterally in a different proceeding. I entirely concur with the view expressed by the learned Acting Chief Justine in that case and, in my opinion, the decision in the earlier case of Kali Prasanna Sil v. Panchanan Nandi Chowdhury 33 Ind. Cas. 670 : 23 C.L.J. 489 : 20 C.W.N. 1000 : 44 C. 367 and the decisions of this Court in Satyabadi Gountia v. Bediadhar Bar Panda 46 Ind. Cas. 392 : 3 P.L.J. 404 and Rama Singh v. Janak Singh 56 Ind. Cas. 697 : 1 P.L.T. 300 : (1920) Pat. 232 : 2 U.P.L.R. (Pat.) 121 (unreported) , which followed it, cannot be supported. To the questions submitted in this reference I am of opinion that assuming the Court making the order was satisfied that the circumstances contemplated in Clause (a) or (b) of Order XXIII, Rule 1(2), existed, the answer should be in the negative. I find that the Court was so satisfied in the present instance and I would dismiss the appeal with costs, including the costs of this reference.

B.K. Mullick, J.

8. I agree that the appeal should be dismissed with costs, including the costs of this reference. Whether the order of a Court which has given leave to withdraw with permission to bring a fresh suit in contravention of the terms of Order XXIII, Rule 1, can be revised u/s 115, Civil Procedure Code, is, in my opinion, if the section is strictly construed, a matter of some doubt, but the practice in this Court has been to interfere either under the powers conferred by Section 115, Civil Procedure Code, or by the Government of India Act and the defendants proper remedy, therefore, was to move the High Court to set aside the order granting leave in this case. The order was in no sense a nullity and could not be questioned in a collateral proceeding.

Jwala Prasad, J.

9. I agree that the appeal should be dismissed with costs, including the costs of this reference.