Asutosh Mookerjee, Acting C.J.
1. This is an appeal by the plaintiff in a suit for recovery of possession of immoveable property upon declaration of title. The Court of first instance dismissed the suit as barred by the proceedings in a previous suit. The Subordinate Judge has affirmed that decree on the ground that the suit is not maintainable. In our opinion, the decision of the Subordinate Judge cannot be supported.
2. It appears that in the previous suit instituted by the plaintiff, he prayed, on the 24th August 1916, for withdrawal of the suit with leave, as it is put in the order-sheet, and the following order was then recorded; 'He is allowed to withdraw with leave to bring a fresh suit on his depositing the costs of the defendant within a fortnight.' The costs were not deposited within a fortnight, but the present suit was instituted on the 8th January 1917. Thereafter, on the 18th January 1917 the costs were deposited as directed in the order in the previous suit, and the money was subsequently paid out to the persons entitled to those costs. We are of opinion that in view of these events, the present suit cannot be treated as not maintainable.
3. It will be observed that the order of the 24th August 1916 was not framed in the terms which were laid down by this Court in Sadhu Charan Tewari v. Baikuntha Nath Madak (Shital Prosad Mondal v. Gaya Prosad Dingal) 23 Ind. Cas. 210 : 19 C.L.J. 529 and others as the appropriate terms to impose in such circumstances, namely, to grant leave on payment of costs within a specified time coupled with a direction that on failure to pay the costs within such time, the original suit would stand dismissed with costs. If such an order had been made in this case, the result would have been that on the failure of the plaintiff to comply with it within 14 days from the 24th August 1916, the former suit would have stood dismissed. The consequence would have been that the present suit would have been barred by virtue of Order XXIII, Rule 1, Civil Procedure Code. No such order, however, was made; and consequently the present suit is maintainable. The only course which could be adopted by the Court of first instance was that pointed by Sir Lawrence Jenkins, C.J., in the case just mentioned; namely, to stay the hearing of the suit till the costs were paid and then, when the costs were paid, to proceed with the trial of the suit. We may add that our attention has been drawn to other cases, namely, Hare Nath Das v. Syed Hossain Ali 10. C.W.N. 8 : 2 C.L.J. 480, Gopi Lal v. Naggu Lal 10 Ind. Cas. 6 : 14 C.L.J. 105 : 15 C.W.N. 998 and Abdul Aziz Molla v. Ebrahim Molla 31 C. 965, but there is nothing in these cases which really militates against the view we take, in conformity with the opinion of Sir Lawrence Jenkins.
4. The result is that this appeal is allowed, the decree of the Subordinate Judge set aside and the case remitted to the Court of first instance to be tried in accordance with law. The appellant is entitled to his costs both here and before the Subordinate Judge. The costs in the Court of first instance will abide the result.
Ernest Fletcher, J.