Petitioner in both these civil revision petitions is the third defendant in O.S. 806 of 1987 on the file of the Munsiff's Court, Kottayam, filed by the first respondent in these revision petitions as plaintiff.

2. The suit is one for a prohibitory and mandatory injunction against the defendants for the purpose of the construction of a retension wall on the southern side of the property. The first defendant is the father of the revision petitioner herein and the second defendant is his wife. The suit was eventually decreed against which an appeal was preferred by the second respondent herein as A.S. 246 of 1993 and the petitioner herein was the second respondent in that appeal. Petitioner herein was declared ex parte in the said appeal. He filed an application as I.A. 1269/1999 for setting aside the ex parte order. That was filed on 6.12.1999. In para 4 of the affidavit filed in support of the petition, it is averred that the appellant had actually no right over the property and she had a already separated from the revision petitioner. Subsequently, the appellant (second respondent herein) filed a memo seeking to withdraw the appeal which came up for consideration on 11.1.2002 on which day, the appeal was dismissed as withdrawn. On the same day, the application for setting aside the ex parte order filed by the petitioner herein was also closed on the ground that the appeal it self has been dismissed as withdrawn. It is against that order that C.R.P. 1870 of 2000 is filed.

3. Subsequent to the dismissal of the appeal as withdrawn as aforesaid, the petitioner herein filed an application as I.A. 50/2000 under Order XXIII Rule 1A of the Code of Civil Procedure seeking to transpose himself as the appellant in the said appeal and seeking permission to continue the proceedings. On 25.1.2000 the said application was dismissed on the ground that the application for restoration filed by him has already been dismissed in other words, after dismissing the application for restoration, the court has passed an order on the application for transposition also. No revision is filed against the order dismissing the application for restoration of the appeal. However, the petitioner has filed C.R.P 588 of 2000 as against the order dismissing his application for transposition.

4. Heard both sides. According to the learned counsel for the petitioner, under Order XXIII Rule 1A read with Order 1 Rule 10 of the Code of Civil Procedure, a defendant or a respondent as the case may be, is entitled to file an application for transposition for transposing himself as the plaintiff or the appellant, as the case may be, even after the dismissal of the proceedings - whether it be an appeal or suit. Order XXIII Rule 1A is extracted hereunder:

1-A, "When transposition of defendants as plaintiffs may be permitted - Where a suit is withdrawn or abandoned by a plaintiff under rule 1, and a defendant applies to be transposed as a plaintiff under rule 10 of Order 1, the Court shall, in considering such application, have due regard to the question whether the applicant has a substantial question to be decided as against any of the other defendants.

5. Revision petitioner contends that the right to file an application for transposition arises either when the plaintiff abandons the suit or when the suit is withdrawn. According to him, even after withdrawing the suit, the section contemplates and permits transposition of the defendant as a plaintiff. He also relies on the decision reported in Ramakrishnan v. Thanka (2000 (3) KLT 886) in support of his contention.

6. On the other hand, the learned counsel appearing for the respondents submits that the provision contained in Order XXIII Rule 1 read with Order 1 rule 10 C.P.C. applies only to a suit and it only gives right to the defendant to be transposed as a plaintiff in the suit and here, since the appeal is not filed by the plaintiff but one of the defendants in the case, the provision has no application. He has