R.N. Misra, J.
1. Defendants in a Title Suit challenge the order of the learned trial Judge permitting the plaintiff to withdraw the suit with liberty to file a fresh suit on the same cause of action.
2. When the revision application was placed for hearing before one of us, the matter was referred to Division Bench. Two questions have been posed for consideration:--
(i) Whether the order of the learned trial Judge in the facts of the case can be sustained and
(ii) In view of the fact that long before the filing of the revision application a decree has been drawn up, does a revision lie in view of the language of Section 115 of the Code of Civil Procedure We will deal with the second aspect first. The learned Munsif by his order dated14th of March, 1975, allowed the plaintiff to withdraw the suit with permissionto file a fresh suit on the same cause ofaction and even did not pass any orderfor costs. After this order was passed on14-3-1975, a decree was drawn up andnotified and on 22nd of March, 1975, thedecree was sealed and signed. The revision application was filed in this Courton 18-8-1975 and as it was barred by limitation on an application made under Section 5 of the Limitation Act, the delayhas been condoned. Section 115 of theCode of Civil Procedure provides:--'The High Court may call for the record of any case which has been decidedby any Court subordinate to such HighCourt and in which no appeal lies thereto, and if such Subordinate Court appears-
the High Court may make such order in the case as it thinks fit.'
Drawing up a decree by itself is not material for deciding as to whether the revision was maintainable. If an appeal lay, revision would be barred. It is conceded that under Order 43, Code of Civil Procedure, the impugned order itself is not appealable. The question is whether the order after it has merged into a decree would be appealable as a decree. 'Decree' has been defined in Section 2(2) of the Code of Civil Procedure to mean:--
'............ the formal expression of anadjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. ............''
The order of the learned Munsif permitting withdrawal of the suit did not conclusively determine the rights of parties with regard to all or any of the matters in controversy in the suit. Therefore, the order did not amount to a decree at all. There was no occasion for drawing up a decree. The General Rules & Circular Orders (Civil) issued by this Court in Chapter V, Part-I, under Rule 11 provide that decree or formal order need not be (drawn up in a case of this type.
3. Mr. Sinha for the petitioners has relied upon series of authorities to show that the order is revisable. See Ramrao v. Appanna, AIR 1940 Bom 121 (FB); Hriday Nath v. Ram Chandra, AIR1921 Cal 34 (FB); Mithai v. Hasan Ali, AIR 1930 All 863 and Kulandai v. Ramaswami, AIR 1928 Mad 416.
4. The grounds given by the plaintiff in her application for withdrawal are contained in the application dated 14-3-1975. She objected to the report of the Commissioner but the report was accepted. She wanted a second commissioner to be taken through court. That prayer was rejected. She came before this Court challenging the rejection but this Court did not interfere; yet observed that it was open to the plaintiff to take a commissioner of her own and examine him as a witness on her side. When she applied to the trial Court some time after, the Court declined to adjourn the matter. Therefore, commissioner could not be taken. This is no ground for asking for withdrawal of a suit. It is sufficient to refer to two authorities on the point: (1966) 32 Cut LT 864 (Dwarka v. Mst. Sashiprabha Gountiani) and AIR 1956 Bom 632 (Tarachand v. Gaibihaji).' The order allowing withdrawal with liberty to file a suit on the same cause of action is, therefore, bound to be vacated.
5. The Civil Revision is accordingly allowed and the impugned order is vacated. The suit must go back to the trial Court to be disposed of on its merit. The learned Munsif is directed to post the suit for trial in such a manner so that the plaintiff would have at least a month's time from the date of receipt of the record and notice thereof being given to parties to get the lands measured by a commissioner on her own account and if necessary examine him as a witness on her side. This order would be on terms of costs. Mr. Pal for the plaintiff is directed to pay Mr. Sinha for the defendants-petitioners a sum of rupees one hundred within two weeks from today. After the money is paid and a receipt is filed in this Court, the record shall be transmitted to the trial Court. On failure to comply with the direction for payment of costs, the Title Suit in the court below shall be taken to have been withdrawn without liberty to bring a fresh suit, without further reference to the Court.