TULJARAM ROW Vs. GOPALA AIYAN

JUDGEMENT

(1.) In A.S. No. 74 of 1915 : This is an appeal of the 2nd defendant the present owner of the equity of redemption in a suit by the mortgagee to enforce his MISSING TIFE NO 435

(2.) evidence to prove his title to sell the A schedule properties with which alone the contesting defendants "were concerned. This was allowed by the Judge and a mortgage decree was passed for the interest by sale of the B schedule properties; as regards the claim for Rs. 1000 the order was "suit withdrawn in respect of the claim with liberty to sue again and plaintiff to pay corresponding costs of defendants 2 to 4". The appellant contends that the order permitting the withdrawal was beyond the competence of the Court and is a nullity and the present suit in so far as it includes a claim to recover Rs. 1000 and the subsequent interest is barred as the matter was res judicata. There is a short answer to this contention, viz., that if the previous order is a nullity, that being the only order which disposed of the claim for Rs. 1000, that claim still remains undisposed of and must be tried, and it has now been tried in this suit. In Kali Prasanna Sil v. Panchanan Nandi (1916) 23 C.L.J. 489, which was principally relied on by the appellant, the 1st court had dismissed the suit on the merits and in appeal that dismissal was confirmed ; but the appellate Court, in addition, purported to give leave to withdraw the suit with permission was held to be a nullity. The result was the original dismissal of the suit became final and the matter became res judicata under Section 11 of the Code corresponding to Section 13 of the Code of 1882. That appears also to have been the case in Watson v. The Collector of Rajshahye (1869) 13 M.I.A. 160. There, there was a dismissal of the suit for want of evidence which was a dismissal on the merits as is shown conclusively by the subsequent proceedings in the case. There was first a summary appeal to the Sudder Court, but they held that the appeal must be brought by way of a regular appeal i.e., not as an appeal from an order, but as from a decree on the merits; and on a regular appeal being preferred the appeal was dismissed, See page 164 of the report, Macpherson s Civil Procedure Code, ch. XXXIX for summary appeals. There was no question of permission to withdraw, for there was no such procedure then and there was only a statement that the order then passed which was a decree for dismissal was not intended to bar the plaintiffs from proceeding as if the action had not been brought. This statement, it was held by their Lordships, could not prevent the actual dismissal from operating as a bar to the maintainability of the subsequent suit under Section 2 of the Act of 1859 which corresponds to the present Section 11 of the Code. That those decisions do not affect the present case is obvious, for there had been no adjudication of any sort in the case on the claim of the plaintiff and the matter cannot therefore be treated as res judicata. The decision of their Lordships in Parsotam Gir v. Narbada Gir (1899) L.R. 26 I.A. 175 : 21 All. 505, is conclusive on the point. In that case there was first a suit for recovery of possession of certain villages which was decreed by the First Court which decree on appeal to the High Court was reversed and the suit dismissed. The appellate Court however expressly stated that they were not deciding on the rights of the parties. A second suit was brought by the same plaintiff against the representative of the same defendant for the same relief and their Lordships reversing the judgment of the High Court held that the subject-matter of the 2nd suit was not res judicata.

(3.) The provisions of Clause 3 of Order 23, Rule 1 do not help the appellant as there has been no withdrawal without permission and the appellant is not entitled to treat one portion of the order, that giving permission as a nullity while holding the plaintiff bound by his withdrawal.