The appellate court has the power to act under Order 23, Rule 1, Civil P. C. and can allow a plaintiff to withdraw a property from the suit and bring a fresh suit upon it.

Walsh, J.

1. The plaintiff filed O.S. No. 226 of 1928 in the Court of the District Munsif of Kollegal for a declaration of his title to his share of the plaint-mentioned properties by virtue of a sale-deed from defendant 1, for partition and division of the same by metes and bounds and for possession of the same from defendants. Defendants 1 and 2 are brothers of a joint family. Defendants 3 and 4 are the sons of defendant 2. Defendants 5 to 8 are alienees from defendant 2. The properties in suit consist of three items. Defendant 1 remained ex parte. The Court held that the plaintiff was not entitled to any share in item 1, but was entitled to a half share in item 2 and half of a two-thirds share in item 3 and that the plaintiff is at liberty to apply for the appointment of a commissioner to take an account as to the amount of liability of the family as it stood up to the date of the decree, as also to find out the value of the said family property and that the plaintiff should account for his share of the family debts (defendant ls). The plaintiff preferred an appeal against this preliminary decree but only in the matter of his being made accountable for the payment of debts. The petitioners put in I. A. No. 214 of 1932 asking for permission to raise a new plea as to the non-maintainability of the suit since there was another item of the family property which had not been included in the suit. The lower appellate Court allowed the petition and called for findings from the lower Court on the new issue, viz., "whether the suit is not maintainable for the reasons stated in the petitioners application I.A. No. 214 of 1932 of this Court."

2. It appears that the plaintiff then asked for leave to amend the plaint by including the omitted item and that the respondents objected to it saying that the amendment, if accepted, would alter the nature of the suit. Vide para. 5 of the affidavit in I. A. No. 756 of 1932 filed in the appellate Court. While this matter was pending, the plaintiff put in the aforesaid I. A. in the appellate Court asking for permission to abandon his claim with respect to item 3 of property in the suit as originally laid, with liberty to institute a fresh suit in respect of the same. The Court allowed the application and against this order the present revision petition is filed.

3. It is admitted that owing to the decision of the Full Bench in Kamayya v. Papayya 1918 Mad 1287 which overruled Chinna Kotayya v. Varadaraja Appa Rao 1915 Mad 339, the appellate Court has power to act under Order 23, Ruel 1, Civil P. C. It is also not disputed that in a suit by an alienee from a member of an undivided family against an alienee from another member, it is not necessary to sue for partition: vide Kandaswamo Goundan v. Venkataswamy Goundan 1933 Mad 774. Consequently, if the plaintiff is allowed to withdraw item 3, in which alone the members of the family besides the alienor are interested, he need, not sue for partition nor add the other item of the family property. But the argument raised on behalf of the petitioners is that, except as regards the accountability for debts, on which alone the plaintiff has appealed the preliminary decree has become final, the defendants not having appealed against it, and it is therefore urged that the lower appellate Court had no power to grant the application to withdraw item 3 and bring a fresh suit upon it. In this connexion Annamalai Chettiar v. Kothayamma (1912) 14 IC 259 is quoted where at p. 292 (of 38 M. L. W.) it is observed:

In partition suits the power of the plaintiff to withdraw lias been limited to this extent, that it can be exercised only till a right in the defendant in the continuance of the suit or its determination in a particular way has been legally created, e. g., by a preliminary decree or a compromise or agreement or award:" vide also Unni Moyan v. Kothayamma (1912) 14 IC 259.

4. On the other side a preliminary objection is raised that an order under Order 23, Rule