An appellant is entitled to withdraw an application for withdrawal of an appeal before an order is passed on the withdrawal application, and the withdrawal application does not become effective until an order is passed by the court.

1. - This order will dispose of the two applications filed by Ramchandra on January 5, 1933 for withdrawal of the appeal and February 28, 1983 for withdrawal of the withdrawal application. The second application dated February 28, 1983 is supported by affidavit of the appellant. A reply has been filed to that application on behalf of respondent No. 1 Pokarram on March 21, 1983 contesting the second application on the ground that no withdrawal of the withdrawal application is permissible in law.

2. The most important and interesting question of law which arises in this appeal is whether it is permissible to order, withdrawal of the withdrawal application of the appeal filed by the appellant on February 28, 1983.

3. The facts for the purpose of answering the aforesaid question may be noticed.

4. An election petition under section 36 of the Rajasthan Municipalities Act (No. 38 of 1959) (for short the Act' herein) was filed by the appellant against the respondents. Respondent No. 1 is the elected member and respondents No. 2 to 4 are defeated candidates and respondent No. 5 is returning officer, Sojat Municipal elections, which were held on February 19, 1982. After trial, the learned Munsif, Sojat by his judgment dated October 23, 1982 dismissed the election petition and hell that respondent No. 1 Pokar Ram is a properly elected member of Ward No. 16 of the Municipal Board, Sojat. An appeal was filed by the appellant under section 46 of the Act on November 26, 1983 questioning the correctness of the judgment dated October 29, 1982 of the Munsif dismissing the election petition. On January 5, 1983, on behalf of the appellant, an application was filed praying therein that the appellant may be allowed to withdraw the appeal. Thereafter, an application under Order 1, Rule 10 and section 151 Civil Procedure Code read with section 46 of the Act was submitted on behalf of respondent No. 3 Hariram, the defeated candidate on January 6, 1983 that he may be transposed as the appellant in place of respondent No. 3. The Court by its order dated January 30, 1983 ordered for the issuance of the notice on both the aforesaid applications to respondent No. 2, 4 and 5. On February 28, 1983, the appellant moved an application that he does not want to withdraw the appeal but wants to prosecute it further and therefore, he may be allowed to withdraw the withdrawal application. On behalf of respondent No. 1, reply was filed contesting the application for withdrawal of the application for withdrawal of the appeal on various grounds which will be dealt with hereunder at the appropriate place.

5. Mr. K. C. Saindaria, learned counsel for the appellant contended that despite the fact that the appellant has moved the application for withdrawal of the appeal filed by him on January 5, 1983 and since no order has been passed on that application, he is entitled to withdraw the application and, therefore, the appeal should be proceeded with. Mr. B. M. Singhvi, learned counsel for it respondent No. 3 supported Mr. K. C. Samdaria, learned counsel for the appellant Mr. R. Mehta, learned counsel for respondent No. 1 pressed for my consideration that having filed the application for withdrawal of the appeal, the appellant is not entitled in law to withdraw the withdrawal application or the appeal, for, so far as the appellant is concerned, the appeal stands withdrawn as the application filed for withdrawal of the appeal is irrevocable and that it is not necessary for the withdrawal being complete to pass all order on it.

6. I have given my most thoughtful and careful consideration to the rival contentions raised by the learned counsel for the parties.

7. It may be mentioned that the procedure for trial of the election petition has been provided in section 41 of the Act. Sub-section (3) of section 41 of the Act is as follows:-

X X X X X X
Sub-sec.(2) of section 46 runs as under :

X X X X X X

ORDER23, Rule 1 Civil Procedure Code is as follows

X X X X X X
It is thus clear t