ANANT BABURAO KULKARNI Vs. VYASACHARYA MADHAVACHARYA GHALASASI

JUDGEMENT

(1.) THIS appeal arises in execution proceedings of a decree for rent. The facts shortly are that the plaintiff, who is the respondent in this appeal, obtained a decree against the present appellant, who was defendant No.1 in the suit, and six other persons for arrears of rent consisting of about Rs. 18 for three years with costs and future interest. The suit was contested by defendant No.7, who was a minor, through his guardian. The other defendants remained absent and did not contest the suit. The decree was a joint and several decree against all the defendants. Defendant No.7 alone filed a revisional application to the District Court against that decree as it was only open to revision by the District Judge under the provisions of the Dekkhan Agriculturists' Relief Act, 1379. Pending the hearing of that application the plaintiff, who was the opponent in that application, filed an application for the withdrawal of the suit as against defendant No.7. The District Judge granted the plaintiff's application with liberty to bring another suit against defendant No.7 on the same cause of action. In the meanwhile, the plaintiff had taken out execution of the decree against defendant No.1 and recovered the decretal amount with costs consisting of about Rs.55. After the suit was allowed to be withdrawn by the District Judge in revision against defendant No.7, defendant No.1 filed an application for restitution under Section 144 of the Civil Procedure Code alleging that the suit in which the decree was obtained by the plaintiff was withdrawn by him and that therefore he was entitled to refund of the amount recovered from him in execution through Court. The trial Court granted the application for restitution under the belief that the revisional application was filed by defendant No.1. The plaintiff appealed to the District Court against the order and the learned Judge set aside the trial Court's order" on the ground that the trial Judge was under a misapprehension that the revision application was filed by defendant No.1. As a matter of fact, it was filed by defendant No.7 only. He further held that the withdrawal of the suit, which was permitted in revision, was of the suit against defendant No.7 only and not against all the defendants, with the result that the decree in so far as it was passed against the remaining defendants remained a valid decree even after the suit was allowed to be withdrawn against defendant No.7. The order of the trial Court was, therefore, set aside, and the application for restitution dismissed.

(2.) DEFENDANT No.1 has nowi filed this appeal and Mr. Dharap on his behalf has contended that the suit was allowed to be withdrawn not simply against defendant No.7 but against all the defendants, because the reason for withdrawal proceeded on a ground which was common to all the defendants, viz. that the defendants were not the plaintiff's tenants but were pot inamdars and not liable to pay rent. It is, however, clear that the plaintiff in his application asked for leave to withdraw from the suit as against defendant No.7 only and the learned Judge granted the application. He did not say that the suit was allowed to be withdrawn against all the defendants on the ground that the reason for withdrawal was common to all of them. It could not, therefore, in my opinion, be contended that the effect of the order passed by the District Judge was to permit the withdrawal of the suit against all the defendants. In fact the learned Judge could not have passed an order of withdrawal of the suit against all the defendants when the remaining defendants were not parties to the revision application. It is no doubt true that a decree can be reversed or varied in appeal at the instance of somd of the defendants only and the effect of such reversal or variation would be for the benefit of all the persons who are parties to the litigation though not. to the appeal, if the reversal or variation proceeds on a ground common to all of them. But it is difficult to say that an order of permission to withdraw from the suit as against all defendants can be passed in a proceeding to which some of them were not parties. Anyhow, there is no doubt that the order of the learned Judge amounted to permission to the plaintiff to withdraw from the suit against defendant No.7 alone, and it must, therefore, be taken that the decree, which was already passed against the remaining defendants, was not affected by that order. That being so, the amount recovered by the plaintiff in execution of that decree cannot be refunded to defendant No.1.