Basil Scott, Kt., C.J.
1. The plaintiff brought a suit against the defendant for possession of certain lands alleging that they belonged to him and had been handed over to the defendant on his undertaking to pay Rs. 50 per annum to the plaintiff for maintenance and that the defendant had failed so to do.
2. The defendant contended that the plaintiff had relinquished his rights in the lands in favour of the defendant. Upon this defence the Subordinate Judge rejected the claim with costs.
3. The plaintiff preferred an appeal to the District Court, but before the appeal was admitted he made an application under Order XXIII for leave to withdraw the suit and bring a fresh suit. This application was heard and granted by the District Judge without any notice to the defendant. It is contended that the learned District Judge has acted with material irregularity in the exercise of jurisdiction in two particulars. In the first place his duty upon the presentation of an appeal is laid down by Order XLV, Rule 11, from which it appears that he may dismiss the appeal without sending notice to the respondent or he may adjourn the hearing, and, if the appellant does not appear, he may dismiss the appeal. But there is no provision allowing him to entertain an application the effect of which will be to get rid of the decree of the lower Court without any notice to the decree-holder and without any hearing of the appeal. It is also contended that the course taken by the learned District Judge is not sanctioned by the provisions of Order XXIII. The Court is empowered to make an order permitting withdrawal from a suit or abandonment of part of a claim where it is satisfied that the suit must fail. That implies that the suit has not yet been disposed of But in the present case the suit has been disposed of and the decree has been passed in favour of the defendant.
4. It is, we think, beyond the power of the Court to allow a withdrawal from a suit with leave to file a fresh suit on the same cause of on after the defendant has obtained a decree in his favour
5. We, therefore, set aside the order of the District Julge under Order XXIII and direct him to admit or reject the appeal under the provisions of Order XLI, Rule 11.
6. Rule made absolute with costs.