The court cannot split the prayer for withdrawal of the suit with permission to file a fresh one.

ORDER :- This Revision Application is directed against the order, dated 2nd September, 1980, passed by the Civil Judge, Junior Division, Margao.

2. The facts of the case are that the petitioners/original plaintiffs filed an application before the learned Civil Judge withdrawing the suit and seeking permission to file a fresh one under O.23, Rr.1 and 3 (b), C.P.C. This application was objected to by the respondents, their case being that no permission to file a fresh suit be granted to the present petitioners. The learned trial Judge after considering the arguments advanced before him, passed the impugned order whereby he allowed the withdrawal of the suit but did not grant the permission to file a fresh one.

3. It is the case of the petitioners that the learned trial Judge erred while passing the impugned order because he has no power to split the prayer of the petitioners which was on the one hand to withdraw the suit and on the other, to get permission to file a fresh one. Elaborating the case of the petitioners, Mr. P. Mulgaonkar, learned advocate appearing for them, submitted that O.23, R.1 lays down that the plaintiff while withdrawing the suit, may seek permission of the Court to institute a fresh suit in respect of the subject matter of the withdrawn suit. The Court, while considering the application for withdrawal of the suit with permission to file a fresh one, is not entitled to split the said application and has either to grant the same or to dismiss it in toto. The learned trial Judge, therefore, committed a material irregularity while disposing of the application of the petitioners, allowing only the withdrawal of the suit and dismissing the application in the part it was prayed that permission be given to file a fresh suit.

4. As against this, Mr. S.K. Kakodkar, learned advocate appearing for respondents Nos.3 to 7, submitted that the revision petition is not maintainable because the order passed by the learned trial Judge amounts to a decree and, therefore, appeal lies against it. Reliance was placed by Mr. Kakodkar in the case of Vilayatali Khan v. Mt. Khairunnissa, (AIR 1941 Nag 180).

5. Before entering into the merits of the present revision application, it becomes expedient, therefore, to deal with the preliminary point raised by Mr. Kakodkar, according to which no revision lies against the impugned order. In the aforesaid case of Vilayatali Khan, it was held that no revision lies when the Court allows the withdrawing of a suit, because such order amounts to a decree. However, the said decision is distinguishable because the facts of the said case are completely different. In fact, a suit had been filed by three plaintiffs and the plaintiffs Nos.2 and 3 were deriving their title from plaintiff No.1. Plaintiff No.1 withdrew the suit and therefore, the Court dismissed the whole suit as withdrawn. It was held that such decision amounts to a decree within the meaning of Section 2 of the Code and is appealable because it is a decision on the merits of the case. This is not the position before us. Indeed, in the present case the situation is quite different and all the petitioners/original plaintiffs filed an application to withdraw the suit with permission to file a fresh one. The learned trial Judge did not decide anything on merits and split the prayer of the petitioners and allowed only the withdrawal of the suit. Section 2 (2) of C.P.C. defines decree as the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. In the present case, the Court has not determined any matter in controversy and has not conclusively arrived at a decision on the subject matter of the suit. In the circumstances, the impugned order cannot be considered and construed as a decree.

6. Order 23, Rule 1 allows the plaintiff to withdraw or aban