R.C. Mitter, J.
1. This appeal is in a suit instituted by the plaintiff-respondent against the defendant-appellant for recovery of arrears of rent. The plaintiff's case is that the defendants hold a jama of Rs. 32 under him in Movza Anupampore. The defendant contended that the plaintiff was not entitled to sue for arrears of rent as he had dispossessed him from a portion of the demised lands. Both the Courts below have found on the evidence the plea of dispossession not made out and decreed the suit. In both the Courts the defendant raised a plea of res judicata which also has been negatived. The appellant urges before me only one point, namely that the decision of the lower Courts on the point of res judicata is erroneous. The facts bearing upon this point are these: In 1926 the respondent instituted a suit for recovery of arrears of rent against the appellant (Rent Suit No. 2660 of 1926). The appellant pleaded for suspension of rent, basing his plea on the same act of dispossession which he puts forward in this case. The learned Munsif in that suit overruled the defence holding that the defendant had not been dispossessed from any portion of the demised lands. Against the decree passed by the learned Munsif the defendant preferred an appeal (Rent Appeal No. 168 of 1927). It appears that at the appellate stage the plaintiff prayed for withdrawal of the suit with leave to sue afresh on the same cause of action. The learned Subordinate Judge who heard the appeal delivered his judgment on August 9, 1928. The material portions of his judgment are in these terms:
Upon the plaint as framed and in view of the evidence adduced in the case the defendant is clearly entitled to have rent suspended and the learned trial Judge appears to have misconceived the facts of the case and the law applicable thereto, if the defendants' tenancy is co-extensive with the plaintiffs eight annas share in Mouza Anupampore, there has clearly been an ouster by the plaintiff in respect of the lands of the jama of Rs. 5 and odd for which the plaintiff has sued and recovered a decree for rent against a third party. The appeal is, in these circumstances, allowed with costs of both Courts and the decree passed by the trial Court set aside. As the plaintiff has applied to withdraw the suit on the ground of formal defect in its frame, I allow the prayer. Plaintiff will be at liberty to sue afresh on the same cause of action if not otherwise barred.
2. The decree that was drawn up and signed is in these terms:
It is ordered that this appeal is allowed with costs of both Courts and the decree passed by the trial Court is set aside. Plaintiff is allowed to withdraw the suit on the ground of formal defect. Plaintiff will be at liberty to sue afresh on the same cause of action if not otherwise barred.
3. It is clear from the said quotations that the Subordinate Judge did set aside the decree passed by the learned Munsif but he did not expressly dismiss the plaintiff's suit. The Courts below have held that the finding in the said judgment about dispossession has been wiped out as the suit was allowed to be withdrawn and hence there was no substance in the defendant's plea of res judicata.
4. Mr. Gupta on behalf of the appellant does not contend before me that an Appellate Court has no power in any case to allow the plaintiff to withdraw his suit, but he contends that the Appellate Court, in this case, having allowed the appeal, had no jurisdiction to permit the plaintiff to withdraw the suit. He says that as soon as the appeal was decreed the Appellate Court became functus officio and any order passed thereafter, e.g., the order allowing the plaintiff to withdraw the suit is without jurisdiction. He says that in these circumstances the findings about dispossession would be res judicata. For his contention he relies strongly on the case of Fateh Singh v. Jagan Nath Bukhsh Singh . There the Subordinate Judge dismissed the suit, but in the judgment added the following observations:
the death of the lady has given the plaintiffs a fresh cause of action for possession. I leave them to the liberty of filing a fresh suit for possession.
5. A suit for possession thereafter was filed. It was contended by the defendants that the plaintiffs could have included in their former suit, which had been dismissed, a claim for possession on the self-same ground and they not having done so, their suit was barred by the rule of constructive res judicata. To meet this plea it was urged by the plaintiffs that the Subordinate Judge had granted them permission to withdraw the earlier suit with leave to institute a suit for possession. Lord Phillimore in overruling the contention of the plaintiffs made the following observations:
There was no, application for leave to withdraw, nor was it withdrawn; it was dismissed. And the power of the learned Judge ceased upon this dismissal.
6. A Full Bench of the Allahabad High Court had taken the same view Sukhlal v. Bhiki 11 A. 187. In both these cases, however, the suit had been dismissed in the first Court which reserved in its judgment the liberty to the plaintiff to institute a new suit. In my judgment the above decisions only affirm the view that the Court of first instance has the jurisdiction to permit withdrawal of a suit only while the suit is pending before it that is at any time before it passes a decree. The language of Order XXIII, Rule 1, Sub-rule (2)(a) of the Code of Civil Procedure clearly implies this.
7. Now the power of an Appellate Court to allow withdrawal of a suit, either with or without leave to institute a new suit on the same cause of action, proceeds from Section 107(2) of the Code. It has the same powers as of the trial Court and no more. If the trial Court has no power to permit withdrawal of a suit after a decree passed by it, the Appellate Court would seem to have no power to permit the withdrawal in the face of a subsisting decree. It has been held that if an Appellate Court passes an order simpliciter allowing the plaintiff to withdraw the suit, it will be taken to have first vacated the decree of the trial Court: See Sheikh Hassan v. Gulam 45 B. 206 at pp. 210, 211 : 59 Ind. Cas. 210 : 22 Bom. L.R. 1183. The proper procedure, in such a case would b(c) for the Appellate Court to set aside the decree of the trial Court and then grant the permission to withdraw. This is the view of the Madras and the Allahabad High Courts which I have no hesitation on following: Balide Kammay v. Pragada Pappayya 40 M. 259 : 37 Ind. Cas. 414 : 21 M.L.T. 82 : (1917) M.W.N. 217 and 246 : 5 L.W. 558 : 32 M.L.J. 477, Ganga Ram v. Datta Ram 8 A. 82 : A.W.N. 1886, 6. The view expressed in the last mentioned case; that the order of the Appellate Court allowing withdrawal of the suit amounts to a decree has no doubt been dissented from, but I am not aware that the reasons given by Tyrrell, J. on the point which I have to consider in this appeal have been disapproved in any case. What the learned Subordinate Judge did in disposing of Rent Appeal No. 168 of 1927, was exactly what was pointed by Tyrrell,. J., in Ganga Ram's case 8 A. 82 : A.W.N. 1886, 6. The decision of Lord Phillimore in Fateh Singh's case , in my judgment, is distinguishable and does not militate against the view I am taking. The order of the Subordinate Judge allowing withdrawal of the plaintiff's suit may have been made irregularly but in my judgment the Subordinate Judge had the jurisdiction to make it. The appeal is accordingly dismissed with costs.
8. Leave to appeal under the Letters Patent asked for is granted.