1. These appeals and revision petitions arise from a partition suit which was filed as O.S. No. 19 of 1920 in the Subordinate Judge's Court of Ramnad and subsequently became O.S. No. 21 of 1923 in the Subordinate Judge's Court of Devakottah. The judgment of the learned Subordinate Judge contains so full and clear a statement of the facts that it is quite unnecessary to say more about them in this judgment than is sufficient to make it intelligible with reference to that judgment. After a lapse of eight years the suit arrived at the stage when the issues having been framed, the trial ought to commence. There was only one plaintiff, who has since died pending these appeals and whose widow is respondent 25. Of the defendants there were four groups, defendants 1 to 6, defendants 7, 8 and 9, defendants 10 to 14 and defendants 15 to 26. Of the casualties among the defendants it is now material only to note that defendants 7 and 8 died and that defendant 9 the only other representative of that group became insolvent and therefore the Official Receiver of Ramnad was added as defendant 27.
2. In this state of affairs on 14th September 1928 V.E.A.Rm. Annamalai Chettiar the appellant, in the above appeal filed a petition (I. A. No. 769 of 1928) praying to be impleaded as co-plaintiff or supplemental defendant on the ground that he had obtained a mortgage from the plaintiff for Rs. 1,50,000 on 23rd March 1923 of the plaintiff's share of the properties. In the last week of November 1928, efforts were made to bring about a compromise and the moving spirit appears to have been the above-mentioned Annamalai Chettiar. As will presently appear, those efforts, though successful in bringing about a memorandum evidencing a considerable amount of agreement between plaintiffs and certain persons belonging to the various groups of defendants except the Official Receiver, had not resulted in a complete agreement either as to the terms or between all the parties. It was expected that the compromise could be completed before and the Court's order obtained on 3rd December 1928 when the case was posted. To carry out one portion of the proposed compromise the plaintiff was to execute a trust deed of all the properties that would fall to his share in favour of Annamalai Chettiar. But owing to other advice the plaintiff did not execute or complete that deed.
3. On 13th November, defendant 10 the eldest member (muthalali) of the family died and it is stated that at the family meeting in connexion with the death, the plaintiff was taxed by the others with his folly in having got into the hands of the Chettiar and proposing to execute documents which would place him absolutely at his mercy. The result was that on 3rd December 1928, the plaintiff gave up his former Vakil who had advised the compromise and trust deed and appeared by another Vakil from Sivaganga and put in a petition I.A. No. 1226 of 1928 unconditionally withdrawing from the suit. Of the four groups of defendants, only the Official Receiver (defendant 27) representing the insolvent defendant 9 objected. He took up the position that there had been a complete compromise of the suit after which the plaintiff could not withdraw. To effectuate this objection he on 4th December filed his own petition I.A. No. 1234 of 1928 to record the compromise and pass a decree accordingly. Apparently not being sanguine about this he on 8th December 1928 filed another petition I.A. No. 1257 of 1928 asking that in view of the plaintiff's proposed withdrawal, he might be transposed as plaintiff and the plaintiff transposed as defendant and the suit continued. Another objector was Anna, malai Chettiar who filed two petitions, one (I.A. 1246 of 1928) for impleading him as 2nd plaintiff in pursuance of the compromise, and another (I.A. No. 1246 of 1928) for a decree in teems of the compromise.
4. To complete this array of objectors another creditor of the plaintiff under a mortgage of 1919, (prior to the suit) whose debt was provided for in Annamalai Chettiar's mortgage but was nod paid also came forward on 5th December 1928, and filed two petitions (I.A. No. 1245 of 1928), to be impleaded in the suit and the other (I.A. No. 1255 of 1928) for adequate provision being made for the discharge of his debt in case the compromise was upheld. It is obvious that all these petitions of 5th December 1928, centred round and were occasioned by plaintiff's petition to withdraw the suit which was his method of repudiating the compromise. The learned Judge in an elaborate judgment of 50 printed pages allowed the plaintiff's petition to withdraw from his suit and dismissed the petitions of others. The appellant in A.A.O. Nos. 69 and 70 of 1929, is Annamalai Chettiar; the petitioner in Nos. 791 and 792 of 1929, is the Official Receiver; and the petitioner in C.R.P. No. 1282 of 1929 is the prior mortgagee.
5. The first important question which is common to Annamalai's appeal, A.A.O. No. 70, and the Official Receiver's petition, C.R.P. No. 792, is whether there was a complete compromise which the parties thereto could require to be recorded and made a decree of Court. If there was no such compromise, the learned Advocate-General conceded, that that appeal and revision petition must fail. On this question, I entirely agree with the learned Subordinate Judge that there was no complete or lawful compromise. The learned Judge deals with the matter in paras. 55 to 94 of his judgment. In the first place it was a compromise which to be complete and effective according to the intention of the parties required the consent of all. It was not a compromise which any of them could contemplate to be effective against those who agree but need not bind those who stood out. It was one and entire. Either all the parties agreed, when it would become effective, or if some stood out, it would have no effect at all. The reasons for this are so obvious that they need no elaboration. Unless all agreed the partition would not be complete and the suit would not terminate as there could be no decree for partition as to some parties leaving out the others. As & matter of fact, the memorandum of agreements Ex. 1, bears only the signature of plaintiff and four of the defendants, i.e., Nos. 1, 2, 11 and 20 dated 25th November 1928.
6. It may have been hoped or expected that the other defendants would join. But they did not join and there is Nothing to show that they had ever authorized those who signed, to arrange the terms or sign on their behalf. Another and equally fatal objection is that there ware several minors among the defendants, e.g., defendants 4 and 5, 13 and 14. Defendant 10 was the guardian of defendants 13 and 14. He had not signed the memorandum at all and even if he had, he would have no power to compromise the suit without sanction of the Court, Order 32, Rule 7. Lastly the group of defendants 15 to 26 consist of several divided families none of whom except defendant 20 signed.
7. Then as to the terms, as the learned Subordinate Judge points out, the memorandum reserves liberty to all parties to amend the memo so as to fully and effectually carry out the intention of the parties. Defendant 2 was to furnish a new schedule to take the place of plaint, Schedule A-2, which was inaccurate. This had not been done. To my mind no other conclusion is possible than that Ex. 1 is not a completed compromise either as to finality of terms or as to consent of all the adult parties and sanction of the Court in respect of minors but represents a growing attempt at a compromise which was never reached and which fell through apparently because the plaintiff took fright at Annamalai, Chettiar's proposals. Each of these persons, according to the learned Judge, overstated his case and the Judge did not believe either of them completely as to the genesis, development) and break down of the compromise proposals (para. 88). But he was of opinion that it was no wonder that the plaintiff repudiated the memorandum and no wonder that plaintiff's well-wishers regarded it in the light in which they put it to plaintiff (para. 93). So far as the present point is concerned it is immaterial whether plaintiff had or had not good grounds for his conduct. If there was no binding compromise, that settles the present point. I have no hesitation in holding that there was none. A.A.O. No. 70 of 1929 and C.R.P. No. 792 of 1929, thus fail and must be dismissed with costs.
8. The next important point is that on which A.A.O. 69 of 1929 depends, whether Annamalai Chettiar was entitled to be added either as plaintiff or defendant although there was no binding compromise. The effect of Clauses 17 and 18 of the proposed compromise was that Annamalai Chettiar should be added as plaintiff 2 and that the decree for plaintiff's share should be in his name. Had this compromise been completed he might have asked the Court to carry it out by adding him and giving a decree according to it. The compromise having broken down the question is whether a simple mortgagee subsequent to suit of the share of a party in a partition suit has the right of being added as a party, as plaintiff or defendant. It is obvious that it is no use adding him as a defendant in a suit which the plaintiff has applied to withdraw, if he is entitled to withdraw. To overcome this difficulty the argument on his behalf is that he is entitled to be added as plaintiff and to continue the suit after the original plaintiff has withdrawn, either under Order 22, Rule 10 as one on whom the plaintiff's interest has devolved, or under Section 146, Civil P.C. as one claiming an interest under the original plaintiff.
9. These arguments are the same as those addressed to the learned Subordinate Judge who rejected them (paras. 52, 53 and 54 of the judgment). He held that on the footing of a person whose presence before the Court is necessary or desirable to decide the questions arising between the parties under Order 1, Rule 10, Annamalai Chettiar's presence was neither necessary nor proper as his presence cannot affect the adjudication of shares and allotment of properties to the shares : Md. Afzal Khan v. Abdul Rahman A.I.R. 1932 P.C. 235, nor can the suit fail by his nonjoinder. Disputes between himself and his mortgagor cannot be gone into in this suit. On the argument based on Section 146 he held that that section is not applicable to addition of parties in pending suits which is governed by other provisions of the Code. On the argument based on Order 22, Rule 10, he held that a simple mortgage is not an assignment, creation, or devolution of interest within the meaning of that rule.
10. The crucial test as to applications under Order 22, Rule 10, is furnished by the language used by the Privy Council in two recent decisions and this makes it unnecessary to examine all the decisions-cited at the Bar, most of which are-mentioned by the Subordinate Judge in para. 53. The decisions are Manindra Chandra Nandi v. Ram Kumar Lal Bagat A.I.R. 1922 P.C. 304 and Lajwanti v. Safa Chand . In the former case a lessee from the defendant was sought to be impleaded in an inquiry as to mesne profits on the ground that he might be proceeded against under this rule. Lord Phillimore, after setting out Section 47 of the Code and Order 22, Rule 10, said:
The order contemplates cases of devolution of interest from some original party to the suit, whether plaintiff or defendant, on some one else. The more ordinary oases are death, marriage, insolvency and then come the general provisions of Rule 10, for all the other cases. But they are all cases of devolution.
11. Then his Lordship drew attention to the difference in language between old Section 372, and the present Rule 10, Order 22, and the omission of the words 'in addition to' in the new rule. It was accordingly held that the liability of the defendant's lessee pendente lite for masne profits was not one arising from any devolution from the defendant, but duo to the lessee's entry upon the plaintiff's property which gave the plaintiff an independent right of action against the lessee. There can be no mistaking the; effect of the above observations that a person who applies to be made a plaintiff under Order 22, Rule 10, must show that the original plaintiff's interest in the suit has devolved on or has been assigned to him absolutely and not merely I that he has obtained a derivative interest in the subject matter like a simple mortgage; and that the suit may be continued by him in the place of and not merely in addition to the original plaintiff. To this interpretation of this decision one objection was mentioned that it would shut out assignees of fractional interest as well of derivative interests. In my opinion, assignees of fractional interests, so long as the assignment is absolute, would still be within the rule as, to the extent of the fraction they will be added not in addition to, but in substitution for, the original party. The note in Mulla's Edn. 9, p. 802, that assignment of interest in this rule includes a mortgage or a lease which was based on the decision in Ram Kumar Lal Bhagat v. Mukand Sahi A.I.R. 1916 Pat. 118 is no longer correct as that was the decision which was reversed on appeal by the Privy Council in Manindra Chandra Nandi v. Ram Kumar Lal Bhagat A.I.R. 1922 P.C. 304.
12. The other case is Lajwanti v. Safa Chand , which arose from an application to amend an order in Council drawn up by inadvertence in favour of the original plaintiff and another and not in favour of the former alone. In defence of the order as drawn up it was submitted that the other person mentioned in the order had obtained by arrangement with the original plaintiff a right to a portion of the subject matter. On this the Privy Council observed that it is out of the question that persons who assert that they have a derivative interest in the stake of a suit can, by getting added as plaintiffs, be associated in a decree in favour of the person who has the only real title and that no decree could have been granted in favour of all the said persons jointly unless there had been either a consent signified by the opposite party or alleged conveyance or assignment of a share of the subjects in the suit produced by the persons who claimed the decree. This has been applied in this Court in the above sense : Srinivasa Aiyangar v. Pratapa Singh Raja Saheb A.I.R. 1926 Mad. 244. The learned Advocate-General attempted to apply to this case the principle of representative actions that where a person represented wants to come on the record on the ground that the representative on the record is by his conduct likely to prejudice the interest of those represented, the Court will allow him. The short answer to this is that this is not a suit of that kind.
13. The appellant's reliance on Section 146 is equally unwarranted. That section is a residuary section which extends the, principle of Order 22, Rule 10 to proceedings and applications for which by the Code, or any other law no other provision is made in that behalf and enacts that in such oases the proceeding or application may be taken or made by or against any one claiming under the original party. The learned Advocate-General argues that to exclude the operation of Section 146 in any given case the other provision must expressly say so. I do not think; that any such express exclusion of a residuary provision like Section 146 is needed to exclude it, if the Code does contain other provisions applicable to the case. The residuary Articles of the Limitation Act are a familiar example of this class of provision in an enactment in which after specific cases are provided for a general residuary provision is made for oases for which no specific provision is made. Where a case falls within a specific provision, resort to the general and residuary provision is not permissible. The applicant's application to be impleaded as a person on whom the plaintiff's interest has devolved in a pending suit and to continue the suit being expressly provided for in Order 22, Rule 10 to the extent to which that rule allows and no more, he cannot be permitted to avoid the conditions of that provision by purporting to proceed under the residuary Section 146.
14. Another aspect of the same matter which leads to the same result is that there is no proceeding or application which the appellant is seeking to take or make claiming under the plaintiff except the suit itself. His application to be impleaded is not made as the representative of another but in his own right. What he does claim in the right of another is the right to continue the suit and this is expressly provided for by Order 22, Rule 10. If the appellant is not entitled under that rule, he is not entitled to continue the suit at all and this prohibition cannot be avoided by resort to Section 146. Thus the provisions of Order 21, Rule 16, which lay down who are entitled to execute a decree, are not to be extended by resort to Section 146 : Perumal Naidu v. Marukrithammal : AIR1927Mad240 , Mathurapore Zamindari Co. Ltd. v. Bhasaram Mandal : AIR1924Cal661 and Alagirisami Pillai v. Lakshmanam Chetty A.I.R. 1926 Mad. 371 in which the Judges differed on this point. So a purchaser from the judgment-debtor of property already sold in execution is not entitled to apply under Order 21, Rule 89 on the strength of Section 146 as the rule limits the right to make such application to purchasers before the Court sale : Sundaram v. Mamsa Mavuchar A.I.R. 1921 Mad. 157 and Venkatesa Aiyar v. Venkatarama Ayyar A.I.R. 1924 Mad. 470.
15. The above appears to me fatal to the appellant's right to continue the suit based on Section 146. But in my opinion it fails on another ground that the appellant is not 'a person claiming under' the plaintiff in the proper sense of the expression in its context in the section. In one sense a mortgagee from the plaintiff claims something, i.e., an interest in the property, under the plaintiff. But I venture to think that though it has been said that this section should receive beneficial interpretation, Muthiah Chettiar v. Govinddoss Krishnadoss A.I.R. 1921 Mad. 599 and that its scope should not be whittled down by a too limited and narrow construction. Alagirisami Pillai v. Lakshmanam Chetty A.I.R. 1926 Mad. 371, the person claiming under the original party contemplated is still one who by a title derived from or under the party, has himself the right to take the proceeding or make the application and not merely one who has a derivative interest in property which may in some manner be affected by the result of the proceeding or the application. In short, the principle of devolution which underlies Order 22, Rule 10 is, in my opinion, that which underlies Section 146 also and is extended thereby to proceedings and applications not otherwise specifically provided for. Thus the defendant's executor may apply under Order 9, Rule 13 : Venkatasubbaiyar v. Krishnamurthy A.I.R. 1915 Mad. 1204. Similarly a purchaser in a money decree against the mortgagor pending a suit on the mortgage can be removed under Order 21, Rule 98 in execution by the purchaser in the mortgage decree : Manicka Gramani v. Parasurama Mudaly A.I.R. 1920 Mad. 943.
16. But where the interest of a party in a preliminary decree was assigned but the assignee was not impleaded and the final decree was passed with the assignor on the record, the assignee of the preliminary decree could not apply to execute the final decree; not under Order 21, Rule 16 because he was not a transferee of the final decree of which execution was sought; and not under Section 146 because he was not claiming the right to execute the final decree under the holder of that decree : Ramanadhan v. Ramachandra Sivaji : AIR1926Mad1129 . The Advocate-General referred to Seshadri v. Venkata Reddi A.I.R. 1924 Mad. 709, which on the present point is rather against him. All that the Court held there was that a transferee of the property concerned in a decree is for the purpose of Section 146 a person claiming under the transferor in respect of the decree also. That opinion was expressly based on the analogy of devolution and on the dictum of Seshagiri Iyer, J., in Sitaramaswami v. Lakshmi Narasimha A.I.R. 1919 Mad. 755, that the words 'claiming under' in Section 146 are wide enough to cover cases of devolution under Order 22, Rule 10. But the appellant's present attempt is to widen the meaning of 'claiming under' so as to include not merely cases of devolution but of derivative interest such as a mortgage. The case in Muthiah Chettiar v. Govinddoss Krishnadoss A.I.R. 1921 Mad. 599 was an instance of fractional devolution (transfer of part of a decree) and it was held that such a transferee could by invoking Section 146 apply for execution as a joint decree, holder. It is not easy to reconcile all the decisions on this point to this principle. But I think that in attempting by a beneficent or liberal interpretation to prevent hardship in particular cases, the principle itself should not be lost sight of.
17. The decision in Sitaramaswami v. Lakshmi Narasimha A.I.R. 1919 Mad. 755 is however in favour of the appellant in that a mortgagee pendente lite was held entitled to appeal against the decree against the mortgagor's title in the first Court. It was held that the application to file the appeal did not fall within Order 22, Rule 10 as that rule was confined to the stage when the suit was pending in the first Court but that an appeal is included in the term 'proceeding' in Section 146 and that the expression 'claiming under' therein was wide enough to cover oases of devolution mentioned in Order 22, Rule 10. On both points this decision would, I respectfully think, require reconsideration in view of the opinion of the Privy Council in Maharaja Sir Manindra Chandra Nandi v. Ram Lal Bhagat A.I.R. 1922 P.C. 304 and Lajwanti v. Safa Chand , referred to above. The opinion of the majority (Wallis, C.J. and Spencer, J.) in Muthiah Chettiar v. Govinddoss Krishnadoss A.I.R. 1921 Mad. 599 is against the view that Order 22, Rule 10 is limited to proceedings before the decree in the first Court and in Manindra Chandra Nandi v. Ram Kumar Lal Bhagat A.I.R. 1922 P.C. 304, that view was assumed to be incorrect. The matter before the Privy Council arose after decree and Section 47, Civil P.C. is expressly set out. Similarly the view that a simple mortgagee is a person claiming under the title holder mortgagor by devolution to the title so as to come within Order 22, Rule 10 is repelled by both the Privy Council decisions and especially by the language of Lord Dunedin in Lajwanti v. Safa Chand .
18. I am therefore of opinion that the appellant derives no more benefit by invoking Section 146 than by Order 22, Rule 10. I also agree with the grounds on which the Subordinate Judge considered that he was neither a necessary nor a proper party in the suit at the stage at which it had arrived. The appellant had for his own reasons omitted to apply to be made a party for five years after the mortgage. The plaintiff, the mortgagor, was disputing the consideration and in the nature of the proposed compromise and the reason for its break-down it would only have gravely complicated the case to implead the appellant. It was mentioned during the argument that the appellant has adopted the precaution of filing his own suit on the mortgage O.S. No. 44 of 1930 in the Sub-Court of Devakottah. For this reason also it is unnecessary to interfere with the orders of the lower Court. The appeal, A.A.O. No. 69 of 1929. fails and is dismissed with costs.
19. I now come to C.R.P. No. 792 of 1929 by the Official Receiver against the refusal of the Judge to transpose him (defendant 27) as plaintiff and the plaintiff as defendant and to continue the suit. The Judge held in paras. 103 to 115 that the plaintiff was entitled to withdraw and terminate the suit, rejecting the opposite contention that in a partition suit the plaintiff has no right to withdraw so as to terminate the suit. The same contention is put forward here and on much the same arguments and authorities. No decision supporting the petitioner's contention has been produced. Therefore Mr. Yaradachari for the petitioner argued on general grounds that in the group of cases, e.g., partition, partnership, accounts, specific performance, administration, etc., in which the defendant is entitled at some stage to ask for appropriate relief, the plaintiff has no right to withdraw so as to terminate the defendant's right to relief. The plaintiff may no doubt abandon his own conduct of the case and any relief he may be entitled to. But the suit once started is a suit in which both sides are in the position of plaintiffs and if the original plaintiff withdraws, it is the right of any of the defendants who is entitled to a share or other relief to be transposed as plaintiff and continue the suit.
20. For this proposition as one of general application in India there is no authority whatever either in the series of Codes of Civil Procedure of which the present one is the fifth or in the numerous decisions given on them. This alone would make it practically impossible for a Court to accept it. Sup port was sought for it in the English procedure relating to counter-claims and the rule that though the plaintiff discontinues his action the counter-claim is not thereby terminated but must be heard and decided : See Section 39(1), Judicature Act, 1925, and R.S.C. Order 19, Rule 3; Order 21, Rule 16; Order 26, Rule 1. The procedure by counter-claim is unknown in the Civil Procedure Code. Even in England it did not exist before 1873 when by the Judicature Act, 1873, Section 24(3), the High Court and Court of appeal were empowered to grant to any defendant in respect of equitable as well as legal rights:
all such relief against any plaintiff or petitioner as such defendant shall have properly claimed by his pleading and as the said Courts respectively or any Judge thereof might have Granted in any suit instituted for that purpose by the same defendant against the same plaintiff or petitioner.
21. Prior to this the defendant had to bring a cross-action if he wanted independent relief against the plaintiff distinct from relief by way of defence or set-off. It will be observed that the procedure by way of counter-claim was confined to the High Court and Court of appeal in England as it is in India to the Original Side of the High Court (see Original Side Rule, 1927, O.V. Rules 3, 7, 8). In McGowan v. Middleton (1883) 11 Q.B.D. 464, the Court of appeal decided overruling a former decision of Jessel, M.R., that by discontinuing an action after the counter, claim has been delivered, a plaintiff cannot put an end to it so as to prevent the defendant from enforcing against him the causes of action contained in the counter-claim. Brett, M.R., spoke of the system introduced by the Judicature Acts as standing between the former systems of equity and common law and resembling that of the Court of Admiralty, where two actions arising out of the same matter might be treated like cross, actions and tried together. Hence the present English rule R.S.C. Order 21, Rule 16, corresponding to our Original Side Rule Order 5., Rule 8, to the same effect. I have no hesitation in rejecting the analogy of counter-claim procedure as applicable to Courts governed by the Civil Procedure Code in order by its aid to introduce a change hitherto unknown to that procedure which can be effected only by legislation. The inconvenience to the defendant of allowing a plaintiff to withdraw his suit without placing any limit of time such as the English rule (R.S.C. Order 26, Rule 1), places on him may be good ground for the Legislature to amend Order 23, Rule 1, Civil Procedure Code. But it cannot justify the Courts themselves legislating to that effect either in respect of suits generally or in respect of particular classes of suits.
22. In partition suits the power of the plaintiff to withdraw has been limited to this extent, that it can be exercised only till a right in the defendant in the continuance of the suit or its determination in a particular way has been legally created, e.g., by a preliminary decree or a compromise or agreement or award. This principle is in my opinion applicable not only to partition suits but to all suits. For it means no more than that the plaintiff will not be permitted to withdraw his suit after a decree of the Court which declares the defendant's right to work out his relief, or after the plaintiff has by his own agreement created, rights in the defendant which he cannot defeat by his own act. Thus in Ramamurthi v. Surampalli A.I.R. 1920 Mad. 546, after a preliminary decree in respect of the immoveables was passed by consent, the plaintiff purported to withdraw the suit in respect of the moveables. This was not allowed and the ground clearly was that having obtained by defendant's consent a share in the immoveables on the footing that the moveables also-would be divided, the plaintiff could not, by any act of his, such as with, drawing, deprive the defendants of their shares in the moveables. In Satyabhamabai v. Ganesh Balkrishna (1904) 29 Bom. 13 there had been an agreement between plaintiff and defendants (widows) giving, them certain properties in lieu of maintenance. The plaintiff then attempted to back out of the agreement by withdrawing. This was not permitted and a decree was passed according to the agreement. The plaintiff appealed and in appeal after an unsuccessful application to withdraw the suit with liberty to file another he purported to withdraw again without that liberty. The appellate Court dismissed not only the appeal but also the suit. The High Court restored the decree of the first Court, Jenkins, C.J., saying that when in a partition suit a defendant has by concession of the plaintiff acquired rights which otherwise could not have existed, it is not open to the plaintiff who has made that concession afterwards to annul its effect by withdrawing the suit-in the appellate Court.
23. In Tukaram Mahadu v. Ramchandra Mahadu A.I.R. 1925 Bom. 425 there was a compromise in respect of a portion of the claim from which the plaintiff attempted to resile. The compromise was filed and a decree passed to that extent. Then the plaintiff attempted to withdraw the rest of the claim. He was not permitted to do so. This case is really on the same principle as Ramamurthi v. Surampalli A.I.R. 1920 Mad. 546 though in the judgment general observations are contained as to the position of defendants in partition suits being that of plaintiffs and thereupon the rule Order 23, Rule 1(4), that one of several co-plaintiffs cannot withdraw without the consent of the rest was also brought in. The real ground of decision is contained in the sentence of Crum, J., at p. 676 of 49 Bom. that it would be most inequitable that a party should be allowed to defeat a compromise by such a device as this (withdrawing from the suit). The same principle is followed in other classes of suits. In Debi Churn Manna v. Bipra Prosad Jana (1903) 7 C.W.N. 186, a suit for land was referred to arbitration and an award made. The plaintiff then applied to withdraw the suit and though the lower Court allowed him to do so, the High Court set aside the decision.
24. I can see nothing in partition suits which except in special circumstances above indicated and which are of general application makes it impossible for a plaintiff to withdraw his suit and so terminate the litigation. But reliance is placed on the doctrine that the defendants in a partition suit are in the position of plaintiffs. In my opinion this means no more than that when as by a preliminary decree or compromise the defendants' shares are determined or declared, they are thenceforth in the position of plaintiffs in order to work out their rights in the same suit and need not resort to a separate suit for that purpose. That does not affect the right of the plaintiff to withdraw and terminate the litigation before such a stage has been reached. This is clearly brought out in Ashidbai v. Abdulla (1906) 31 Bom. 271 where the authorities are referred to and it was concluded that the right of defendants in a partition suit to have a share allotted arises only where there has been a decree properly drawn up in favour of the plaintiff and defendants. For this purpose there can on principle be no difference between a case where the right of the plaintiff to a share is denied as in that case and one where the plaintiff being admittedly a sharer abandons it by withdrawing the suit. For, it has now been settled that where a suit for partition is withdrawn before trial, the proceedings do not establish the status of division : Palani Ammal v. Muthuvenkatachala Moniagar and Krishnaswami Naidu v. Perumal : AIR1925Mad112 .
25. But great reliance was placed on Edulji Munoherji Waoha v. Vullebhoy Khanbhoy (1883) 7 Bom. 167, Brojendra Kumar Das v. Gobinda Mohan Das A.I.R. 1916 Cal. 80 and Addeyya v. C. Venhatarayudu A.I.R. 1914 Mad. 369 for the proposition that in a partnership suit, on the plaintiff's withdrawing from the suit, the defendants (partners) may continue it by getting transposed as plaintiffs. From this I am asked to extend the rule by parity of reasoning to partition suits. On examination it is found that in Edulji Munoherji Waoha v. Vullebhoy Khanbhoy (1883) 7 Bom. 167, which was a case on the Original Side of the Bombay High Court the plaintiff after instituting the suit had settled with the defendants except two and then applied to withdraw the suit. West, J., began his judgment with the remark that it is strange that considering the multitude of partnership cases in the English reports, no case on the point was forthcoming. He then went on to say that a partnership suit is a suit of a peculiar character in which the parties do not stand to each other precisely on the same relation as parties to suits generally. Each of the parties, however formally ranked, is really in turn a plaintiff and defendant and comes before the Court for the adjudication of his right in both capacities relating to the other partners. He held it reasonable that the proceedings in the suit may be moulded to attain the same end. Brojendra Kumar Das v. Gobind Mohan Das A.I.R. 1916 Cal. 80 was an appeal from the Original Side of the Calcutta High Court. The plaintiffs in a partnership suit having received a large sum of money from some of the defendants filed a compromise petition and asked for dismissal of the suit. The other defendants objected and prayed that they may be transposed as plaintiffs and the plaintiffs as defendants and the suit continued. The High Court allowed this, remarking that transpositions are frequent in partner, ship cases and followed Edulji Muncherji Wacha v. Vullebhoy Khanbhoy (1883) 7 Bom. 167.
26. Adeyya v. C. Venkatarayudu A.I.R. 1914 Mad. 369, was an appeal from the mofussil. There had been a preliminary and final decree in a partnership suit in the first Court which was set aside on appeal. The suit having been remanded by the appellate Court to the Munsif's Court the plaintiff withdrew under Order 23, Rule 1. The Munsif dismissed the suit but the Sub-Judge in appeal remanded the suit for accounts to be taken. On an appeal against this order this Court treated the case, as far as appears from the short judgment, as one in which the accounts had been taken which in fact was correct and the defendant had paid court, fee on the amount found due to him. On those facts the decision that the defendant was entitled to have his claim tried was undoubtedly correct on the principle already explained. But it may very respectfully be doubted whether the reliance on Mc Gowan v. Middleton (1883) 11 Q.B.D. 464, which relates to counter-claims was warranted. This decision does not mention the Bombay and Calcutta Original Side cases and is not an authority in favour of the petitioner.
27. I am not called upon to justify or controvert the decisions in Edulji Muncherji Wacha v. Vullebhoy Khanbhoy (1883) 7 Bom. 167 and Brojendra Kumar Das v. Gobinda Mohan Das A.I.R. 1916 Cal. 80. They do not purport to be based upon any peculiarity of procedure of the Original Side of the High Courts though in fact they arose in that jurisdiction. They purport to be founded on the Court's power to transpose parties in suitable cases in partnership suits under Order 1, Rule 10. With such suits I am not now concerned. But as a source of the general principle which petitioner seeks to deduce therefrom, I find no basis in them for it.
28. Moreover though the learned Judge was not right in thinking that the Official Receiver required a separate sanction from the Insolvency Court under Section 59 d), Prov. insol. Act, to file this application as he had already got sanction to intervene in the suit, yet the considerations mentioned in para. 117 of the judgment were entitled to great weight in determining whether it was a prudent step for the Receiver to launch as plaintiff into a litigation of this character. For, at some stage the Insolvency Court would have been entitled to prevent what the learned, Judge considered a most unwise step for the Receiver to take. If the learned Judge sitting on the civil side on such considerations refused to transpose the 27th defendant as plaintiff even if it had the power to do so, after the suit was withdrawn, this Court in revision would certainly not interfere with that discretion.
29. The interference of this Court is not called for in this petition either on the facts or law. The petition (C.R.P. No. 791 of 1929) must therefore be dismissed with costs. The only remaining matter is C.R.P. No. 1282 of 1929 by the previous mortgagee. No doubt if the suit had continued, the petitioner should have been added according to the practice of partition suits in order not only to protect his rights but to deter, mine what the debts of the family were : Vydiananda v. Sitarama (1882) 5 Mad. 52, Sadu Baghu v. Ram Govind (1892) 16 Bom. 608 and Shanmukha Nadan v. Arunachalam Chetty A.I.R. 1922 Mad. 332. But seeing that the suit was terminated by the plaintiff's withdrawal, the petitioner's request was rightly refused. This petition is also dismissed.