D. Chatterjee, J.
1. The plaintiffs brought the suit giving rise to these proceedings in 1909, for declaration of title to certain stares in a certain partnership business with its branches, for dissolution of the said partnership and for accounts. The suit went on for several years through various vicissitudes of fortune until in March 1914, the plaintiffs made a compromise with the principal defendants and on receipt of consideration from them made an application for withdrawing from the suit, the said defendants giving up costs. The petition of compromise stated the nature of the settlement, but did not ask for any relief and in fact under the circumstances related no decree was required, as the plaintiffs stated that they had received the value for the rights given up by them under a deed of release.
2. Upon the said application being made by the plaintiffs, the appellants before us, i.e., the defendants who had not joined in the petition of compromise, applied to be made plaintiffs, to amend the plaint, and to continue the suit as one on their behalf. The learned Subordinate Judge refused their application on the ground that the present Civil Procedure Code did not authorise him to make the transposition asked for, that the applicants had not asked for retaining the original plaintiffs on the record as defendants, that there was conflict of interests between the original plaintiffs and the appellants, so that it could not be said that the old suit was to be continued. The suit was accordingly dismissed without costs as the objectors did not ask for costs. The appellants then asked that a decree might be prepared so that they might appeal from the same, but the learned Subordinate Judge refused their application saying that no decree was necessary as the suit had been dismissed for want of prosecution. Against the said order the appellants filed the above appeal and as an alternative obtained the above Rule.
3. If the Court below had been bound to make a decree and had not, we might have entertained the appeal.
4. We find, however, no reason to differ from the learned Subordinate Judge on this point. The plaintiffs had settled their differences and received satisfaction out of Court by the execution of separate deeds and intimated to the Court that they would not proceed with the suit.
5. The Court was not required to give them any relief and the Court could not give them any. It is contended that the Court was bound to pass a decree under Order XXIII, Rule 3. The parties to the compromise, however, which had been effected out of Court, did not ask for a decree, and the objectors, who were no parties to the same, could not ask for one, so that the only course left to the Court was to dismiss the suit, as it did, for want of prosecution, unless, of course, it saw its way to continue the suit at the instance of the objectors. There is no appeal against an order of this kind, and the appeal fails. As regards the Rule, it is contended that the learned Judge, in refusing to make the transposition of parties and amendment asked for, refused to exercise a jurisdiction vested in him by law. It is true that the provision in Section 32 of Act XIV of 1882 that the Court might make a plaintiff a defendant and a defendant a plaintiff, has been omitted from the present Code, but, I think, it was omitted as redundant as the provision of Order I, Rule 10 (2), for striking out or adding parties is sufficient to cover the case of such a transposition, being in effect the striking one party off the side of the suit in which he had been placed and re-adding him on the opposite side.
6. Such transpositions are frequent in partnership cases : see Krishnabai v. Sonubai 2 B.H.C.R. 310 and Edulji v. Vullebhoy 7 B. 167, and there is nothing in the Code to take away the power of the Court to make orders in that behalf when the circumstances require it. The Court below distinguishes the last case on the ground that the applicants did not ask the Court to make the original plaintiffs defendants. I do not think that the distinction is legitimate, because in the first place the original plaintiffs had parted with all their interest in the partnership in favour of defendants Nos. 1 to 15 and had, therefore, no subsisting interest in the suit : see Sayad Abdul Hak v. Gulam Jilani 20 B. 677, and in the second place the applicants did not say that they did not want to have the original plaintiffs as defendants, and the Court had ample power under Order I, Rule 10, to make them defendants if it thought necessary. The Court below was in error therefore in holding that it was not authorized to make the transposition under the new Code. It is true that the Court had a discretion in the matter and might refuse to make the order in the exercise of that discretion. The learned Judge, however, thought he had no jurisdiction and cannot, therefore, be said to have exercised the discretion which he had in the matter, with that consciousness of power and competence which is necessary to strengthen his hands in the use of the discretion. He has made other distinctions also on minor points which can be met by amendments. He has, therefore, I think, refused to exercise a jurisdiction vested in him by law. The case of Edulji v. Vullebhoy 7 B. 167 is exactly in point, and I, think the learned Judge should have followed it and allowed the appellants to continue the suit which had passed through five years in Court and was ripe for hearing. It is true that the appellants have subsequently filed an independent suit of their own which is pending, but if that suit has to pass through another five years to be ripe for hearing, the proceedings may be endless. I think, therefore, the right order would be to dismiss the appeal as incompetent and to make the Rule absolute, and order the Court below to restore the suit to its file, make the necessary amendments and proceed to trial in accordance with law. No costs.
7. I agree.