1. The revision petitioners are the defendants in a suit for specific performance filed by the respondent. Suit, was compromised and decree was passed on 24/02/2000. Subsequently, alleging fraud and coercion as also challenging the competence of the Power of Attorney, of the plaintiff to enter into a compromise, the defendants filled IA No. 3587/2000 dated 04.8.2000, under Order 47 Rule 1 read with Sections 114 and 151 of the Civil Procedure Code. The plaintiff filed objections. Subsequently, on advise, the defendants filed a memo stating

“the petitioners beg to withdraw I.A.No.3587/00 as the same is not maintainable in law and the petitioners are today filing an interlocutory application under the proper provisions of law”.

The said memo was recorded and the IA was closed on 24/01/2001. On 25/01/2001 another I.A. was filed seeking the very same reliefs, but however, invoking the power of the Court under the proviso to R.3 of O.23. That was rejected holding that, the earlier I.A was withdrawn; without reserving liberty, and the subsequent application cannot be entertained by reason of the specific bar under O.23 R.1.

2. The counsel for the revision petitioner Sri N. Subramaniam would canvass for the position that O.23 R.1 deals with only original proceedings and not interlocutory applications arising out of such original proceedings. The counsel for the plaintiff/respondent Sri. Dinesh Shenoy, however would contend that applying the provisions of Section 141 of the CPC, all proceedings in a Civil Court, including those termed as interlocutory, will come within the ambit of O.23 of R.1. The learned counsel for the respondent would also appeal to this Court to consider the facts upon which the setting aside of the decree is sought for in the Court below and the hardship to which the respondent/plaintiff is put to in not being able to deal with the properties though having complied with the letter and spirit of the compromise. It is also specifically pointed out that the respondent had not objected to the application filed under O.23 R.1 and only when the same was posted for evidence, the withdrawal memo was filed; clearly as a dilatory tactic.

3. At the outset, this Court is not persuaded to go into the facts or adjudicate upon the claim of fraud and coercion made before the Court below. Though the impugned order extracts the pleadings in the interlocutory application; the consideration was confined to the maintainability of the application. Hence, bereft of the facts, this Court is called upon to consider only whether the application subsequently filed under a different provision is barred by virtue of the provisions of O.23 R.1, since the withdrawal of the earlier application was without leave to tile a fresh application. Further, this Court has also to deal with the question of limitation which was considered by the Lower Court and found against the revision petitioners.

4. Order 23 Rule 1 deals with withdrawal and adjustment of suits. Rule 1 specifically confers on the plaintiff the right to abandon the suit as such or a part of the suit claim against all or any of the defendants. The only caveat being with respect to minors or other persons to whom the provisions of Rule 1 to 14 of O.32 extend. We are not concerned with any such parties in the above case. By sub-rule (3) of R.1 of O.23, it is

provided that when the Court is satisfied that the suit is bound to fail by reason of some formal defect or there are sufficient grounds for allowing a plaintiff to institute a fresh suit; then, the plaintiff may be permitted to withdraw the suit or the part of the claim reserving liberty to institute a fresh suit. Sub-rule (4) also mandates that in the event of no liberty being granted under sub-rule (3), then the plaintiff shall be precluded from instituting any fresh suit in respect of the very same subject matter or such part of the claim. The first issue to be dealt with is whether an interlocutory application also would