Krishnaswami Ayyangar, J.
1. This is a civil revision petition filed against the order of the Subordinate Judge of Coimbatore in I. A. No. 554 of 1939 on his file. That application was made by the third plaintiff in O.S. No. 33 of 1939 for an order permitting him under Order 23, Rule 1 read with Section 151, Civil Procedure Code to withdraw from the suit and to strike his name off from the record. The learned Subordinate Judge dismissed the application and hence the revision petition.
2. O.S. No. 33 of 1939 was instituted by the first two plaintiffs along with the petitioner for the specific performance of a contract entered into between the first two plaintiffs and the defendant by which the defendant had agreed to reconvey certain properties purchased by him from the former. The properties consisted of a mill and premises and also certain agricultural lands 'which belonged to the first two plaintiffs. They sold those properties for a consideration of Rs. 26,000 of which Rs. 17,000 was actually advanced by the defendant and the balance was undertaken to be paid by him towards a Government loan taken by the first two plaintiffs on the security of the property conveyed. Simultaneously with the sale deed, an agreement was executed by the defendant to reconvey the properties on receipt of the moneys advanced by them for the purchase. It was mentioned in the plaint that a sum of Rs. 17,000 only had been advanced by the defendant and that the two plaintiffs were therefore entitled to reconveyance on payment of that sum only. The petitioner who was the third plaintiff was a financier of the first two plaintiffs, having agreed in pursuance of an agreement of 17th November, 1938 to advance the said sum of Rs. 17,000 in order to enable the first and second plaintiffs to obtain a reconveyance of the property from the defendant. The arrangement between the parties was that a further sum of Rs. 3,000 should be advanced by the petitioner and for the consolidated amount of Rs. 20,000 the first and second plaintiffs should give an usufructuary mortgage over the properties sought to be recovered in the suit. It also appears that on the date on which the suit was instituted a mortgage was executed by the first and second plaintiffs in favour of the third plaintiff by which the former mortgaged the right to obtain a reconveyance from the defendant for a sum of Us. 50 advanced by the third plaintiff.
3. On the facts mentioned, the parties apparently considered that the suit to obtain a reconveyance should be instituted by all the three plaintiffs. The third plaintiff who had unsuccessfully attempted to tender the sum of Rs. 17,000 before suit deposited the money into Court along with the plaint. Disputes and differences seem to have arisen between the first two plaintiffs on the one hand and the third plaintiff on the other after the institution of the suit which led to the third plaintiff desiring to withdraw from the suit and calling back the money deposited by him. Two applications were accordingly taken out by him; LA. No. 554 of 1939 for leave to withdraw from the suit and I.A. No. 555 of 1939 for refund of the Rs. 17,000 paid into Court as aforesaid. The learned Judge was of opinion that the petitioner should not be allowed to withdraw from the suit as that course would operate to the prejudice of the remaining plaintiffs. He held that it was not necessary for him to obtain the consent of the other plaintiffs as he was neither asking for liberty to institute a fresh suit under Order 23, Rule 2 nor seeking to avoid the consequences which Order 23, Rule 3 imposes upon a plaintiff who withdraws from the suit without the permission of the Court. He seems to have accepted the view laid down in Nilappa Gouda V. Basan Gouda (1926) 29 Bom.L.R. 299 and Mohamaya Chowdhrain v. Durga Churn Shaha(1881) 9 Cal.L.R. 332, that sub-rule (4) does not govern an application for the Unconditional withdrawal of a suit under sub-rule (1). My attention was called on behalf of the respondents to Mst. Ram Deo v. Mst. Baku Rani I.L.R.(1921) Pat. 228 and Upputuri Punnayya v. Polavarapur Lingayya : AIR1928Mad496 and it was argued that in the light of the decisions in these cases, sub-rule (4) should not be limited in its application to sub-rules (2) and (3) only but that it should be held to govern sub-rule (1) as well. In none of these cases has the question been discussed or the reasoned view put forward in Mohamaya Chowdhrain v. Durga Churn Shaha (1881) 9 Cal.L.R. 332 and Nilappa Gouda v. Basan Gouda (1926) 29 Bom.L.R. 299 considered. In fact, these two cases do not appear to have been cited before the learned Judges who decided them. The point was noticed in a Bench decision of this Court in Ramasami Chettiar v. Rengan Chiettiar : (1933)65MLJ693 but the learned Judges did not find it necessary to decide it and based their decision upon a different point altogether. In the absence of any binding' decision, I am inclined to follow the view propounded in Mohamaya Chowdhram v. Durga Churn Shahai (1881) 9 Cal.L.R. 332 and Nilappa Gouda v. Basan Gouda (1926) 29 Bom.L.R. 299 which proceeded upon the specific words contained in sub-rule (4) which is to the following effect:
Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to withdraw without the consent of the others.
Rule 1 does not contemplate the necessity for a plaintiff to obtain the permission of the Court to withdraw a suit or abandon part of his claim when he does not seek for liberty to institute a fresh suit on the cause of action withdrawn. It is only in case where the permission of the Court is required that Sub-rule (4) is called into operation and the Court is not to give the permission when the other plaintiffs did not accord their consent.
4. This view, however, does not mean that one of several plaintiffs has an unconditional right to withdraw from a suit though it may be that for such a purpose, the consent of the other plaintiffs may not be necessary. On this point, the decision of this Court in the case already cited, namely, Ramasami Chettiar v. Rengan Chettiar : (1933)65MLJ693 , lays down the proposition that the Court can refuse to allow one of several plaintiffs to withdraw if such a course is not consented to by the remaining plaintiff or plaintiffs and if it be prejudicial to his or their interests. In other words, the Court is entitled, to take into account the consideration whether the result of the withdrawal would tend to prevent the successful prosecution of the suit as framed or create obstacles in the way of the plaintiff so doing. If there is real prejudice to the remaining plaintiffs and they do not consent to the withdrawal, the Court will take this circumstance into consideration before it comes to a decision one way or the other on an application for withdrawal. I am unable to see in this case how it could possibly be said that the first two plaintiffs are prejudiced by the third plaintiff withdrawing from the suit. The suit for specific performance can still go on to a successful termination even in the absence of the third plaintiff if the remaining plaintiffs are able to produce the necessary money for obtaining a reconveyance from the defendant. The prejudice suggested is not a prejudice to the conduct . of the suit in the sense of a legal difficulty to the Court going on with a suit. What was said was that the first two plaintiffs had secured a financier and if he dropped out, they will be put to the necessity of searching for another. This is no doubt an inconvenience but it does not amount to a legal obstacle to the continuation of the suit. It is merely an inconvenience to the plaintiffs having no relation to the conduct of the suit. Such an inconvenience cannot be regarded as a prejudice which should prevent the Court from granting an application to withdraw by one of several plaintiffs.
5. The learned Subordinate Judge is of opinion that the petitioner is a necessary and proper party to the suit on the facts alleged in the plaint. It may be that he is a proper party but I do not see how he is a necessary party t6 a suit based upon a contract to which the third plaintiff was not a party at all. In view, however, of the fact that he has evinced Ms intention to withdraw from the suit Unconditionally without seeking liberty for instituting a fresh suit, he ceases to be even a proper party. But I do not and am not called upon to express any final opinion on this aspect of the question. It is enough to say that that is a question which will arise between him and the other two plaintiffs and it is unnecessary for me to consider it in connection with this petition. For the reasons mentioned, I am of opinion that the learned Subordinate Judge was in error in considering that the withdrawing of the petitioner from the suit would operate to the detriment of the other plaintiffs.
6. The error was due to his failure to appreciate the proper significance of the decision in Ramasami Chettiar v. Rengan Chettiar : (1933)65MLJ693 . I therefore set aside the order of the learned Subordinate Judge and allow the petitioner's application I.A. No. 554 of 1939.
C.R.P. No. 1224 of 1940.
7. C.R.P. No. 1224 of 1940, arises out of I.A. No. 555 of 1939, an application filed in the lower Court by the petitioner for payment out to him of the sum of Rs. 17,000 deposited into Court along with the plaint. The Subordinate Judge has permitted the petitioner to withdraw the amount from Court on the condition of his redepositing into Court in the event of the plaintiff's success and furnishing security in the meanwhile for so doing to the satisfaction of the lower Court. The learned Judge's view undoubtedly was that the petitioner was not entitled to withdraw the money and retain it for himself without a liability to bring it back into Court. If he allowed him to withdraw, it was more for the purpose of preventing the money remaining idle in Court rather than in recognition of an unconditional right in him to withdraw the money.
8. The question is whether the petitioner is entitled unconditionally to withdraw the money from the Court. In view of my order in C.R.P. No. 1225 of 1940, the petitioner ceases to be a party to the suit but his right must be determined on the footing that while he was a party he made the deposit. ' In order to arrive at a conclusion on this point, it is necessary to find whether the money remained the property of the petitioner even after deposit or it became the property of one or other of the parties to the suit. This question can be determined only by reference to the contract between the parties contained in Ex. C, the agreement of 17th November, 1938. The petitioner is a money-lender by profession and the terms of the agreement show that he was not agreeable to the money being paid to the plaintiffs with the risk of the reconveyance not being obtained if the plaintiffs spent away the money without paying it to the defendant. To avoid such a contingency, the stipulation was inserted in the document that the money should be paid for the purpose of obtaining reconveyance either to the defendant himself direct or deposited into Court. In the light of this stipulation, it is clear to my mind that when that money was deposited into Court, it was deposited for the purpose of payment to the defendants and not that it should forthwith become the property of the other plaintiffs. The defendant by his conduct has shown that he is not prepared to accept the money. In fact when the money was tendered to him before suit, he declined to accept it. The position, therefore, is, as if the petitioner has attempted to make a second tender through Court, a tender which down to the present day has not been accepted. It was never intended that the first two plaintiffs should receive the money or become liable for it unless the defendant actually received the money. At the present stage, the event has not occurred and it seems to me that the money therefore, should be regarded as money still belonging to the petitioner, tendered to but not accepted by the defendant.
9. As I have already mentioned, there has been a breach between the first two plaintiffs and the petitioner and the rights of the parties in consequence of the breach have therefore to be determined elsewhere in other proceedings. Whatever those rights may be and whatever liability for damages the petitioner might have incurred, his right to withdraw the money which is still his can scarcely be open to doubt. The order of the Subordinate Judge is accordingly set aside and there will be in its place an order directing the refund of the sum of Rs. 17,000 deposited by the petitioner into Court. I understand that the money has been already withdrawn on the petitioner furnishing security. The result of my order will be that the security will stand cancelled. The respondent will pay the costs of the petitioner in both the civil revision petitions. One set advocate's fee.
10. C.R.P. No. 2127 of 1940, will be dismissed, but there will be no order as to costs.