JAGAT NARAYAN, J.—This is a revision application against an order of the Civil Judge Banswara dated 21.11.55 dismissing a suit for dissolution of partnership and rendition of accounts in which a preliminary decree had been passed on the application of the plaintiff under O. 23, R.1(1) C.P.C. and against his subsequent order dated 18.6.56 refusing to review his earlier order.

2. The facts which have given rise to this application are these. Chiranjilal respondent No. 1 instituted a suit for dissolution of partnership and rendition of accounts against the four applicants Mathuralal, Nanalal, Manaklal and Babulal and the remaining three respondents Maganlal, Karulal and Surajmal on 28.11.53 in the court of the Civil Judge, Banswara. A preliminary decree was passed in the suit on 16.8.54. Only Maganlal defendant appealed against this decree. The appeal was dismissed by the District Judge on 18.4.55. Maganlal filed a second appeal in the High Court which was withdrawn by him on 26.4.56 and was dismissed as having been withdrawn.

3. Under the preliminary decree a lawyer was appointed as commissioner to go into the accounts and submit a report in order to enable the court to pass a final decree. On 22.2.55 this commissioner submitted a report expressing his inability to arrive at a definite finding with regard to the matters referred to him on account of his lack of experience of accounting. On 20.4.55 the plaintiff and the defendants filed an application praying that four persons named therein be appointed as arbitrators to decide the remaining disputes. On this application the learned Civil Judge referred the case to these four arbitrators. One of these arbitrators Shri Heera Lal had to go away in connection with the treatment of his wife. The remaining arbitrators were enable to act in his absence. On 1.10.55 the learned Civil Judge accordingly passed an order that the parties should either nominate another arbitrator in place of Shri Heera Lal or show cause why the reference should not be superseded and the case disposed of by the court. 21st October, 1955 was fixed as the next date of hearing. On 21.10.55 the learned counsel for the parties stated that they had not been able to take instructions from their clients and prayed for an adjournment. The court thereupon fixed 28.11.55 as the next date in the case.

4. On 21.11.55 Chiranji Lal plaintiff appeared before the learned Civil Judge and presented an application the material portion of which is to the following effect :—

"(1) The case was referred to the arbitrators 6 months ago, but they have not given any decision. The time for submission of the award has passed. I do not want that this time should be extended. I pray that the reference be superseded.

(2) From the report of the commissioner who was appointed to go into the accounts in this case it is clear that he has expressed his inability to report the extent to which each of the part ners was liable. In the suit which I filed I alleged that Maganlal and Mathuralal were liable for the whole amount, but keeping in view the report of the commissioner I do not wish to proceed further in the matter. I accordingly present this application under O. 23, R. 1 for withdrawing the suit. I do not wish to pay costs to any defendant."

On this application the lawyers representing six of the defendants noted that they did not wish to claim any costs. The application for withdrawal was signed by Chiranjilal plaintiff personally and purported to be on his behalf. It was, however, signed by Maganlal also. The court made a note on this application that it was presented by Chiranjilal & Maganlal and by Sarva Shri Surya Karan, Sukhlal and Durga Shankar Vakils. On the same day the court passed an order to the following effect: —

"The plaintiff has presented an application that he wishes to withdraw this suit and that he does not wish to ask for permission to bring a fresh suit. The suit is accordingly dismissed under O. 23, R. 1. Parties shall bear th

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