A plaintiff has the right to withdraw a suit as against a defendant under Order XXIII, Rule 1, C. P. C., before a preliminary decree is passed. After a preliminary decree is passed, the plaintiff cannot withdraw the suit as the other parties, being in the position of plaintiffs, can continue the suit.

( 1 ) O. S. 184/68 was a suit filed by the Revision petitioner for dissolution of a partnership and settlement of accounts. There were in all five defendants. They seemed to have filed a written statements. Issues were framed. Plaintiff was examined as P. W. 1.

( 2 ) IT is at this stage on 13-10-1969 the plaintiffs counsel represented to the Court that the plaintiff on the one hand and defendants 1, 3, 4 and 5 on the other have arrived at a compromise and that the plaintiff desires to give up his case as against the 2nd defendant.

( 3 ) I. A. No. 1007 of 1969 was filed by the plaintiff for recording the compromise between the parties excluding the 2nd defendant.

( 4 ) THE 2nd defendant filed I. A. No. 1025/69 under Order 1, Rule 10, C. P. C. requesting the court to transpose him as the 2nd plaintiff and transpose the plaintiff as the 6th defendant.

( 5 ) THERE was yet another application filed by the 1st defendant I. A. No. 1026 of 1969. He requested the Court to dismiss the suit according to the terms of the compromise and direct the 2nd defendant to institute a suit to enforce his right if any.

( 6 ) THE trial Court dismissed the 2nd defendants application i. e. , I. A. No. 1025/69. We are not concerned with the reason because nothing turns upon that. I. A. No. 1007/69 was allowed and the compromise was recorded. I. A. No. 1026/69 also was allowed. Specifically , however , the Court did not say that the suit of the plaintiff is dismissed as against the 2nd defendant as he was given up by the plaintiff. Nor the trial Court has expressly said that in view of the terms of the compromise the plaintiffs suit stands dismissed as against the other defendants.

( 7 ) NEVERTHELESS, the 2nd defendant aggrieved by the orders passed by the trial Court preferred an appeal to the Sub-Court preferred an appeal to the Sub-Court. The Sub-Court allowed the appeal and directed the trial Court to proceed with the suit and allow the 2nd defendant to lead evidence even if the plaintiff does not want to proceed with the case. This conclusion was based on the assumption that in a suit for dissolution of partnership all the partners stand in the position of the plaintiff and each one of them can proceed with the suit as he is ultimately entitled to a decree in case he is found entitled to it.

( 8 ) IT is to question the validity of this order of the appellate Court that the present revision petition was filed.

( 9 ) WHEN it came before our learned brother V. Madhava Rao, J. the learned Judge thought that there is a conflict between the two decisions of Justice Y. Venkateswara Rao, one reported in Sri Ramamurthy v. Rajiah, (1969) 1 APLJ 138 and C. M. A. No. 214/64 dated 23-4-1970, short noted in Andhra Pradesh High Court 1971 page 134. He, therefore, referred the matter to a Bench and that is how it has come before us.

( 10 ) NOW, under Order XXIII, Rule 1, C. P. C. at any time after the institution of a suit, the plaintiff may, as against all or any of the defendants, withdraw his suit or abandon part of his claim. According to sub-rule (2), where the Court is satisfied about the defects in the suit, it may , on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of a claim. What follows this provision of law is that it is only when the plaintiff desires to file a fresh suit in respect of the same subject-matter or part of it that the permission of the Court is required. In other cases. the plaintiff is free to either withdraw the suit or abandon part of his claim as against all or any of the defendants. It is only in pursuance of this provision of law that the plaintiff abandoned the suit as against the 2nd defendant. It require any permission of the Court to dismiss the suit as abandoned against the 2nd defendant. Even in regard to the other defendants, although a compromi