JAIJIBAI PESTONJI MODI Vs. BHIKHIBAI CHANDULAL CHHOTALAL

JUDGEMENT

(1.) THIS revision application is filed by the plaintiff in a suit for a declaration that certain property was not liable to be sold in execution of a decree obtained by the defendant, who is the opponent here, against one Bapuji.

(2.) AFTER issues were framed the plaintiffs applied to the Court for permission to withdraw the suit with liberty on the ground that the property was in possession of the receivers in another suit filed by the other creditors of Bapuji, that in their absence this suit might fail for want of necessary parties and that a fresh suit was, therefore, necessary impleading all proper parties. The application was presented on February 15, 1940, and on the same day the learned Judge passed an order to the effect that he was satisfied that in the ends of justice, the plaintiffs may be allowed permission to withdraw the suit with liberty to institute a fresh suit in respect of the subject-matter on condition that the plaintiffs pay in cash full costs of the defendant in' this suit before the institution of a fresh suit.

(3.) ORDER XXIII, Rule 1, of the Civil Procedure Code, provides: 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 .... it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit ... with liberty to institute a fresh suit in respect of the subject-matter of such suit....