Chamier and Piggott, JJ.
1. This is an application for revision of an order passed by the District Judge of Bareilly under Order XXIII, Rule 1, Clause (2) allowing the plaintiff to withdraw from the suit and giving her liberty to institute a fresh suit in respect of the same subject matter. It is contended that the learned Judge had no power to act under this rule because it is only the court of first instance that can allow the plaintiff to withdraw the suit and give him or her permission to institute a fresh suit. The applicant relies upon the decision of the Madras High Court in Choragudi China Kotayya v. Raja Varada Raja Appa Row : (1914)27MLJ244 and the decision of the Bombay High Court in Eknath v. Ranoji (1911) I.L.R. 35 Bom. 261. These two decisions certainly support the contention advanced on behalf of the applicant, but as long ago as 1885 this Court in Ganga Ram v. Data Ram (1885) I.L.R. 8 All. 82, decided that an appellate court could under Section 373 of the Code of Civil Procedure, 1882, give a plaintiff, whose suit had been dismissed by the court of first instance, permission to withdraw his suit and give him leave to institute a fresh one. The decision in that case was based on some earlier decisions of the Calcutta High Court, under the corresponding provision in the Code of Civil Procedure, 1859. So far as we are aware the correctness of the decision of this Court has never been challenged in this Court, and we believe that when the new Code of Civil Procedure was passed there was no reported decision to the effect that the appellate court could not give such permission. All the reported cases were in favour of the view that the appellate court could give such permission. Indeed, courts had gone further and held that a court executing a decree could give such permission. Order XXIII, Rule 4, distinctly lays down that nothing in the Order shall apply to any proceedings in execution of a decree or order, thereby superseding the decision that a court executing a decree could give such permission. The language of Order XXIII, Rule 1, is not exactly the same as that of Section 373 of the Code of Civil Procedure of 1882. The provisions of the enactment have been re-arranged; but we do not think that the re-arrangement indicates any intention to lay down that an appellate court is not to give such permission. We do not think that sufficient ground has been shown for departing from the long continued practice of this province founded upon the decision of this Court in Ganga Ram v. Data Ram (1885) I.L.R. 8 All. 82. A good deal may no doubt be said against the view taken by this Court; but the ruling has stood unchallenged for many years and we shall only introduce con fusion if we depart from it now. There are several reported cases in which the lower appellate court has given the plaintiff permission to withdraw from the suit and file a fresh suit and such orders have been attacked on various grounds; but so far as we know, it has never been contended here since 1885 that an appellate court has no power to grant such permission. We propose to adhere to the decision of this Court.
2. Then it is contended that even if the District Judge had jurisdiction to act under Order XXIII, Rule 1, he has exercised his jurisdiction in an unreasonable way, that he has not found that the suit would fail on account of a formal defect, and that the ground given by the District Judge is really no ground for allowing the, plaintiff to withdraw from the suit. The suit was one for partition of property which originally belonged to one Moti Begam. One of the children of Moti Begam was Kamini Begam, who was married to a man named Khadim Ali. Several members of the family were impleaded as defendants to the suit, but the heirs of Khadim Ali, who was dead, were not impleaded. In her written statement the first defendant to the suit distinctly pleaded that as Khadim Ali's heirs were not parties to the' suit, the suit could not proceed. This plea appears to have escaped the attention of the Subordinate Judge, when he was fixing issues, with the result that no specific issue was fixed regarding it. But at the time of argument, the Subordinate Judge was asked to decide, behind the back of Khadim Ali's heirs, that they had no right to the estate. He declined to do this, but set apart what he considered to be Khadim Ali's share, and gave the plaintiff a decree for partition of her share in the remainder of the property. The plaintiff appealed, contending that her entire claim should have been decreed. The first defendant filed cross-objections, one of which was that all the necessary parties had not been impleaded, and that the suit should have been dismissed. Thereupon the plaintiff presented a petition to the District Judge saying that it was by mistake that she had failed to implead the heirs of Khadim Ali, that the first defendant had pleaded that the suit could not proceed in their absence and had reiterated this objection in her memorandum of objections in the appellate court, and that she was afraid that her suit and appeal would be dismissed on this ground, she therefore prayed for permission to withdraw from the suit and bring another suit. The District Judge, rightly or wrongly, held that as the suit was one for partition, non-joinder of necessary parties might result in its being dismissed, and he pointed out that a complete partition of the property could not be effected in the absence of Khadim Ali's heirs, and he came to the conclusion that a fair ground had been made out for allowing the plaintiff to withdraw from the suit. It may be that we should not have taken the same view as the District Judge took of the non-joinder of Khadim Ali's heirs. It might have been possible to hold that the suit could proceed in their absence so far as the rest of the property was concerned; but this is not an appeal, and it seems to us impossible to say that the District Judge, in arriving at his decision that permission to withdraw the suit should be given to the plaintiff, has acted Illegally, or with material irregularity. We are, therefore, unable to interfere with the decision of the District Judge. We dismiss this application with costs.