Law: Civil Procedure Code (V of 1908)

Section:

Civil Procedure Code (V of 1908)-----   ------- O. XXIII, r. 1 (3) Appellate Court allowing plaintiff-appellant's application to with draw appeal without leave to institute fresh suit-Withdrawal of appeal does not amount to withdrawal of suit itself-Bar created by sub-rule (3) precludes institution of fresh suit-Civil Procedure Code (V of 1908), S. 107.   The plaintiff along with his brothers brought a partition suit. The suit was dismissed. Against the order of dismissal the plaintiff preferred an appeal which was later withdrawn by him without obtaining the permission of the Court for the filing of a fresh suit. The plaintiff then filed a fresh suit against the same defendants. On the question whether the express bar created by sub-rule (3) of Order XXIII, rule 1 of the Civil Procedure Code, precluded the institution of the fresh suit:   Held: when the appeal is withdrawn simpliciter it has the effect of restoring the status quo ante ; namely, the position is as if the appeal had not been filed. Thus, the decree of the Court below is left intact, for otherwise the withdrawal of the appeal, if it also amounted to a withdrawal of the suit would amount to an adjudication really of the suit itself on its merits. The order granting permission to withdraw, however, is not a decree in that sense and it cannot, therefore, be given any greater effect. It does not judicially deal with the subject-matter of the suit but merely recognizes authoritatively that the appellant does not wish to go on with his appeal. Thus the withdrawal of the appeal does not and cannot also amount to a withdrawal of the suit itself. Under section 107 of the Civil Procedure Code, 1908, the appellate Court has the powers to grant permission to withdraw the suit and there are innumerable decisions which would indicate that if it is intended to withdraw a suit in the appellate stage such permission is expressly asked for and obtained.   Gopal Chandra Banerjee v. Purna Banerjee and others 4 C W N 110 held not applicable.   Chamed Sheikh v. Naba Gopal Ghosh and others 19 C W N 359 and S. P. A. Anamalay Chetty v. B. A. Thornhill 36 C W N (P. C.) distinguished.  …