N.H. Bhatt, J.
1. This revision application under Section 115 of the Civil Procedure Code deals with an interesting question of law which so far has not arisen before any Court in India as the painstaking advocates appearing for both the sides declared before me.
2. A few facts require to be stated. The present opponents nos. 1 to 6 who are the heirs of one Induprasad Devshanker Bhatt, had filed the Civil Suit No. 2119 of 1953 in the Court of the then Civil Judge (JD) at Ahmedabad against some persons including the present applicants impleaded as defendants nos. 5 and 6 for redemption of four agricultural lands bearing survey nos. 131, 133, 134 and 135 of village Ghodasar in Ahmedabad District on the basis of the registered mortgage. Exhibit 145 in the suit being dated 17th September 1936 for the sum of Rs. 3,000 which were borrowed by the mortgagors with interest at the rate of one per cent per month with an express promise to pay the interest every month and had also put these lands into the possession of the mortgages with the right to the mortgages to put the mortgaged property to sale in order to satisfy the principal amounts as well as the amount of interest. The usufruct was permitted to be appropriated first towards interest amount and then towards the principal amount, if it was available. The said suit ultimately had gone to the Court of the Civil Judge. (SD), Narol where it came to be registered as the Regular Civil Suit No. 158 of 1971. The litigation had come up to this High Court in the form of the Second Appeal No. 745 of 1961 but it is no longer in controversy before me that the only field that was held to be redeemable was survey No. 131. It is an admitted position that the decree for redemption under Order 34 Rule 7 of the Civil Procedure Code was directed to be drawn only in respect of the survey No. 131. The copy of the judgment of this High Court was made available to me at the time of hearing of this civil revision application and I reproduce there from below the operative part:
The result, therefore, is that the appeal is allowed and the decree passed by the learned 2nd Extra Assistant Judge is modified and the following decree is substituted for the decree passed by the lower appellate Court.
Preliminary decree under Order 34 Rule 7 of the Code Civil Procedure shall be drawn up as follows:
(a) The plaintiff is entitled to redeem survey No. 131 shown in mortgage deed Exh. 145 dated 17th Sept. 1936.
(b) The Commissioner appointed by the Trial Court or to be appointed by it shall take the following accounts : (i) An account of what is due on this date to the defendants for principal and interest in respect of the mortgage transaction evidenced by Ex. 145 the interest to be calculated at the rate specified in Ex. 145, (ii) An account of the income of survey No. 131 received by the defendants up to this date or by any other person by their order or for the use of the defendants which, without wilful default of the defendants or such person, might have been so received, (iii) An account of all money properly incurred by the defendants up to this date for costs, repairs, charges and expenses (other than the costs of the suit and appeals) in respect of survey No. 131 together with 12 per cent interest thereon, and (iv) An account of any loss or damage caused to the mortgaged property before this date by any act or omission of the defendants and which is destructive of, or permanently injurious to the property or by their failure to perform any of the duties imposed upon them by any law for the time being in force or by the terms of the mortgage deed.
(c) Paragraphs 2, 3, 4 and 5 in form 7 in appendix D to the Code of Civil Procedure shall be retained. The Trial Court shall make an appropriate order if a fresh order is required to be made for the appointment of commissioner, for his fees and for him to submit report to it. 7th January 1971 shall be the date for the plaintiff to pay into Trial Court such cum as may be found due. The Trial Court may, if necessary, extend the said date....
3. After the above judgment dated 7th July 1970 had come to be passed by the Division Bench of this Court, speaking through S.N. Sheth, J. sitting with D. P. Desai, J., the matter went to the Civil Judge (SD), Narol. Then the commissioner was appointed again for taking accounts after the earlier report of his had been set at naught. Then the two applications. Exhibits 300 and 308, came to be filed on behalf of the plaintiff No. 1's heirs and also by the plaintiff no. 2 declaring that they did not want to proceed with the suit and that they were withdrawing the suit. The defendants Nos. 5 and 6 strenuously objected to this. The learned Trial Judge, however, by his order impugned in this revision application being dated 29-9-1979, allowed the plaintiffs to withdraw the suit, obviously unconditionally, as he thought, it was plaintiffs right to withdraw their suit at their sweet will. It is against this order that the present revision application has been filed by invoking Section 115 of the Civil Procedure Code by the original defendants Nos. 5 and 6 on the ground that the learned Trial Judge had no jurisdiction at law to permit the plaintiffs to withdraw their suit at this stage so as to treat the suit as disposed of for all purposes.
4. Mr. M.C. Shah, the learned advocate appearing for the applicants-original defendants Nos. 5 and 6 urged that though ordinarily a plaintiff has an unbridled right to withdraw the suit instituted by him, there are recognised certain exceptional situations in which the litigation is such as would result into possible mutual rights and liabilities and because a preliminary decree for redemption also deals with the possible rights of the defendants, the withdrawal of the suit cannot be permitted or recognised, Mr. Shah for the applicant initially submitted that the plaintiffs were actuated by an oblique motive of doing away with the Court's judgment declaring that the three out of four survey numbers were not available for redemption. Mr. Shah feared that by obliterating the said finding in favour of the defendants Nos. 5 and 6, the plaintiffs were contemplating a second round of litigation for the redemption of all the four survey numbers because withdrawal of a suit for redemption did not bar a fresh suit for redemption as held by the Federal Court in the case of Those China Subba Rao and Ors. v. Mottapalli Raja and Ors. reported in AIR (37) 1950 Federal Court 1. The second limb of Mr. Shah's argument was that in a decree under Order 34 Rule 7 of the Civil Procedure Code there is an adjudication of the right of the defendants also and when such an adjudication in favour of the defendants is there, this sort of withdrawal is not permissible.
5. The Supreme Court had an occasion to examine the provisions of Order 25 Rule I of the Civil Procedure Code, 1908, in the case of Hulas Raj Baij Nath v. Firm K.B. Bass and Co. reported in : 3SCR886 . There the Supreme Court held that 'in a suit for rendition of accounts by principal against his agent the principal is entitled to withdraw the suit even at the stage when issues have been framed and some evidence has been recorded but no preliminary decree for rendition of accounts has yet been passed'. In that case no preliminary decree had been passed and the defendant insisted that the plaintiff must be compelled to proceed with the suit. Reliance in this connection was placed on the views expressed by a Division Bench of the Madras High Court in the case of Seethai Achi v. Meyappa Chettiar reported in : AIR1934Mad337 . The Supreme Court examined the provisions of Order 23 Rule 1 (1) and held that the said provisions gave an unqualified right to a plaintiff to withdraw from a suit subject to the liability of the plaintiff to pay such costs as might be awarded by the Court with the further liability that the plaintiff would be precluded from instituting any fresh suit in respect of that very subject matter. The Supreme Court, however, then proceeded to clarify their say by the following observations:
It is of course, possible that different considerations may arise where a set-off may have been claimed under Order 8, or a counter-claim may have been filed. If permissible by the procedural law applicable to the proceedings governing the suit.' It is necessarily implied in the above judgment that in the preliminary decree which has been passed giving rise to certain rights of the defendant, this alleged absolute right of withdrawal may not be recognized. It is in this context that the judgment of the Division Bench of the Supreme Court will come to govern the situation. The observations of the Division Bench of the Madras High Court in Seetgai Achi 's case (supra) as reproduced by the Supreme Court are extracted below: 'Ordinarily, when the Court finds no impediment to the dismissal of a suit after the announcement of the withdrawal of the claim by the plaintiff, it will simply say that the suit is dismissed as the plaintiff has withdrawn from it. An order as to costs will also be passed. But several exceptions have been recognised to this general rule. In suits for partition, if a preliminary decree is passed declaring and defining the shares of the several parties, the suit will not be dismissed by reason of any subsequent withdrawal by the plaintiff, for the obvious reason that the rights declared in favour of the defendants under the preliminary decree would be rendered nugatory if the suit should simply be dismissed. So also in partnership suits and suits for accounts, where the defendants too may be entitled to some reliefs in their favour as a result of the settlement of accounts, the withdrawal of the suit by the plaintiff cannot end in the mere dismissal of the suit.
I follow the judgment of the Division Bench of the Madras High Court in Seethai Achi's case (supra) and hold that though ordinarily the plaintiff has an absolute right to withdraw his suit unconditionally if he is ready to encounter the consequences flowing from Order 23 Rule 1(1) of the Civil Procedure Code, there are certain well-recognised exceptions and the facts of the present case would constitute such an exception. In the case on hand, the preliminary decree declares, decidedly in favour of the applicants-the original defendants Nos. 5 and 6, that they are not liable to get redeemed three out of the four fields. Apart from this, there is a more cogent reason why the withdrawal is not recognisable. The High Court while disposing of the second appeal No. 745 of 1961, as noted by me above, had specifically directed that paragraphs 2, 3, 4 and 5 in Form No. 7 appended to the Code of Civil Procedure shall be retained. Paragraph 5 is reproduced below from the said Form No. 7 in appendix 'D' and it reads as follows:
5. And it is hereby further ordered and decreed that, in default of payment as aforesaid, the defendant shall be at liberty to apply to the Court for a final decree that the plaintiff shall thenceforth stand absolutely debarred and foreclosed of and from all right to redeem the mortgaged property described in the Schedule annexed hereto and shall, if so required, deliver up to the defendant quiet and peaceable possession of the said property; and that the parties shall be at liberty to apply to the Court from time to time as they may have occasion, and on such application or otherwise the Court may give such directions as it thinks fit.
It is, therefore, evident that by the decree not only the plaintiffs right was recognised but the defendants' rights also were recognised and decreed. The defendant under the decree was at liberty to apply to the Court for a final decree that the plaintiff shall thenceforth stand absolutely debarred and foreclosed from all right to redeem the mortgaged property and even to deliver up to the defendant quiet and peaceable possession of the said property.
6. In above view of the matter the withdrawal of the suit would result into the loss of the right which was decreed in favour of the defendants. Such a withdrawal, therefore, was not permissible in terms of the Supreme Court's observation in paragraph 2 in Haias Rai Baij Noth's case (supra). The Supreme Court itself in paragraph 2 of the said judgment mentioned that the 'application for withdrawal was moved at a stage when no preliminary decree had been passed for rendition of accounts.' The situation on band is quite otherwise. So it was not open to the plaintiff to rob the defendants' of their right which had accrued to them pursuant to the preliminary decree passed in their favour and so the normal right of withdrawal which is recognized on all hands for the plaintiff in a suit was not available to the plaintiffs of this suit. The learned Trial Judge, in my view, was therefore, clearly in error in holding that the suit had stood withdrawn and disposed of.
7. The impugned order, therefore, is set aside and it is declared that the said suit is alive on the file of the learned Trial Judge at the stage at which it was prior to the passing of the impugned order at the hands of the learned Trial Judge. Rule is accordingly made absolute with no order as to costs.