Srinivasa Aiyangar, J.
1. In A.S. No. 74 of 1915 : This is an appeal of the 2nd defendant the present owner of the equity of redemption in a suit by the mortgagee to enforce his
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evidence to prove his title to sell the A schedule properties with which alone the contesting defendants 'were concerned. This was allowed by the Judge and a mortgage decree was passed for the interest by sale of the B schedule properties; as regards the claim for Rs. 1000 the order was 'suit withdrawn in respect of the claim with liberty to sue again and plaintiff to pay corresponding costs of defendants 2 to 4'. The appellant contends that the order permitting the withdrawal was beyond the competence of the Court and is a nullity and the present suit in so far as it includes a claim to recover Rs. 1000 and the subsequent interest is barred as the matter was res judicata. There is a short answer to this contention, viz., that if the previous order is a nullity, that being the only order which disposed of the claim for Rs. 1000, that claim still remains undisposed of and must be tried, and it has now been tried in this suit. In Kali Prasanna Sil v. Panchanan Nandi (1916) 23 C.L.J. 489, which was principally relied on by the appellant, the 1st court had dismissed the suit on the merits and in appeal that dismissal was confirmed ; but the appellate Court, in addition, purported to give leave to withdraw the suit with permission was held to be a nullity. The result was the original dismissal of the suit became final and the matter became res judicata under Section 11 of the Code corresponding to Section 13 of the Code of 1882. That appears also to have been the case in Watson v. The Collector of Rajshahye (1869) 13 M.I.A. 160. There, there was a dismissal of the suit for want of evidence which was a dismissal on the merits as is shown conclusively by the subsequent proceedings in the case. There was first a summary appeal to the Sudder Court, but they held that the appeal must be brought by way of a regular appeal i.e., not as an appeal from an order, but as from a decree on the merits; and on a regular appeal being preferred the appeal was dismissed, See page 164 of the report, Macpherson's Civil Procedure Code, ch. XXXIX for summary appeals. There was no question of permission to withdraw, for there was no such procedure then and there was only a statement that the order then passed which was a decree for dismissal was not intended to bar the plaintiffs from proceeding as if the action had not been brought. This statement, it was held by their Lordships, could not prevent the actual dismissal from operating as a bar to the maintainability of the subsequent suit under Section 2 of the Act of 1859 which corresponds to the present Section 11 of the Code. That those decisions do not affect the present case is obvious, for there had been no adjudication of any sort in the case on the claim of the plaintiff and the matter cannot therefore be treated as res judicata. The decision of their Lordships in Parsotam Gir v. Narbada Gir , is conclusive on the point. In that case there was first a suit for recovery of possession of certain villages which was decreed by the First Court which decree on appeal to the High Court was reversed and the suit dismissed. The appellate Court however expressly stated that they were not deciding on the rights of the parties. A second suit was brought by the same plaintiff against the representative of the same defendant for the same relief and their Lordships reversing the judgment of the High Court held that the subject-matter of the 2nd suit was not res judicata.
3. The provisions of Clause 3 of Order 23, Rule 1 do not help the appellant as there has been no withdrawal without permission and the appellant is not entitled to treat one portion of the order, that giving permission as a nullity while holding the plaintiff bound by his withdrawal.
4. It is not therefore necessary to express an opinion on the question, whether an order granting permission to withdraw with liberty to sue again in a case when the Court grants such permission, on an erroneous construction of the provisions of law which give the power, is a nullity. But with all respect to the learned judges who decided otherwise, I venture to doubt whether such an order is a nullity as one passed without jurisdiction strictly so called. 'When a Court is properly seized of jurisdiction of the subject-matter of a suit and of the parties, orders passed in violation of the provisions of law regulating the further proceedings in the suit in relation to the subject-matter till the termination of the suit cannot be said to be so totally without jurisdiction as to 'render them nullities. It can only amount to a material irregularity in the exercise of jurisdiction; for example, there is Order I Rule 10 which gives power to the court to add or strike out parties; if an improper order is made under that rule can the parties ignore it and treat it as a nullity though such an order may be said to have been made in one sense without jurisdiction? (See the language used by Lindley, L.J. in Moser v. Marsden (1892) 1 Ch. 491. Or again if an injunction is issued or a receiver appointed under conditions or in circumstances not coming within the terms of the sections 'conferring the power can a party treat those; orders as nullities? I think the true rule is that if the court has jurisdiction to pass orders of a particular kind, that it passed an order which it should not have passed is not a case of total want of jurisdiction so as to render that order a nullity. This is well illustrated by Gomatham Alamelu v. Komandur Krishnamacharlu I.L.R. (1904) M. 118, where a court having general jurisdiction of such suits rendered judgment for recovery of land outside its territorial jurisdiction and yet that judgment was held not to be a nullity.
5. The consequence of holding that an order giving permission to withdraw with liberty to sue again is a nullity and is capable of collateral attack may be serious. The terms of the rule are wide and in particular cases it may be very difficult to decide whether permission should or should not have been granted; orders improperly passed but with jurisdiction and orders passed without jurisdiction, are incapable of precise definition. In this very case there was a serious argument that the order was quite proper, at any rate it was not one passed without jurisdiction, though we are inclined to hold that the permission should not have been granted. If a party who is dissatisfied with such an order is to be allowed to treat it as a nullity in a subsequent proceeding, without vacating the order by proper proceedings, the plaintiff may be subject to a serious risk conceivably without any fault of his own. This was the view taken in Perumal v. Karuppan : (1911)21MLJ574 , which was not cited at the bar, by my learned brother and another learned Judge of this Court and in Chhaju v. Khiali Ram (1912) 14 I.C. 175, by the Allahabad High Court. This contention must therefore be disallowed.
6. Two more points were taken, but were not pressed. The decree of the lower Court will therefore be modified in respect of interest as stated above and the appeal otherwise dismissed. The appellant will pay and receive proportionate costs here and in the court below from the plaintiffs.
7. The plaintiffs hive preferred a memorandum of objections, but there is no substance in the points taken and it must be dismissed with costs.
8. It is agreed that 9 per cent, is to be substituted for 101/2 per cent, as regards the principal, and the decree of the lower Court will be amended accordingly.
9. C.R.P. No. 1046 of 1915 is also dismissed as it has now become unnecessary.
Abdur Rahim, J.
10. I agree.