1. We are of opinion that, when a suit has abated against a particular defendant by reason of his legal representatives not having been brought on the record within the time limited by law and when the plaintiff thereupon withdraws his suit with permission to bring a fresh suit, such a permission can only empower him to bring the fresh suit against those defendants who were on the record on the date of the withdrawal and not against a defendant who had ceased to be on the record or against the legal representatives of a defendant; who was dead at the time of the withdrawal and whose said representatives had either not been brought on the record or had been removed from the record by an appellate order which set aside the order of the First; Court bridging them on record.
2. As regards Perumal v. Karuppan : (1911)21MLJ574 the learned Judges were no doubt (if we may say so with respect) right in saying that the cause of action in that case survived as against the defendants other than the deceased defendant and hence a new suit would be under the permission granted under Section 373 as against the other defendants. But in so far as that decision holds that even against the legal representatives of a defendant who wa8 dead at the time of the withdrawal with permission to bring a fresh suit, the new suit would be sustainable, we respectfully dissent therefrom, the learned Judges themselves having evidently arrived at their conclusion after much hesitation,
3. Further the modifications made by the new Civil Procedure Code in the language of old Sections 373 and 368 [Order XXXIII, Rule 1 and Clause (2) of Order XXII, Rule 4] seem to make the matter quite clear and to prevent the bringing of the fresh suit as against a defendant who was not on the record at the time of the withdrawal.
4. We therefore reverse the learned District Judge's order and restore the Munsif's decision with coats in this and in the Lower Appellate Court in favour of the appellant.