An order permitting withdrawal of a suit with liberty to file a fresh suit is not a decree and is therefore revisable under Section 115 of the Code of Civil Procedure.

R. N. MISRA, J.

( 1 ) DEFENDANTS in a Title Suit challenge the order of the learned trial Judge permitting the plaintiff to withdraw the suit with liberty to file a fresh suit on the same cause of action.

( 2 ) WHEN the revision application was placed for hearing before one of us, the matter was referred to Division Bench. Two questions have been posed for consideration:- (i) Whether the order of the learned trial Judge in the facts of the case can be sustained ? and (ii) In view of the fact that long before the filing of the revision application a decree has been drawn up, does a revision lie in view of the language of Section 115 of the Code of Civil Procedure ? We will deal with the second aspect first. The learned Munsif by his order dated 14th of March, 1975, allowed the plain tiff to withdraw the suit with permission to file a fresh suit on the same cause of action and even did not pass any order for costs. After this order was passed on 14-3-1975, a decree was drawn up and notified and on 22nd of march, 1975, the decree was sealed and signed. The revision application was filed in this Court on 18-8-1975 and as it was barred by limitation on an application made under Section 5 of the Limitation act, the delay has been condoned. Section 115 of the Code of Civil procedure provides:-- "the High Court may call for the re cord of any case which has been decided by any Court subordinate to such High court and in which no appeal lies thereto, and if such Subordinate court appears- (a ). . . . . . . . . . . . . (b ). . . . . . . . . . . . . (c ). . . . . . . . . . . . . the High Court may make such order in the case as it thinks fit. " drawing up a decree by itself is not material for deciding as to whether the revision was maintainable. If an appeal lay, revision would be barred. It is conceded that under Order 43, Code of Civil Procedure, the impugned order itself is not appealable. The question is whether the order after it has merged into a decree would be appealable as a decree. 'decree' has been defined in section 2 (2) of the Code of Civil Procedure to mean:-

". . . . . . . . . . . . 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. . . . . . . . . . . . . ''

The order of the learned Munsif permitting withdrawal of the suit did not conclusively determine the rights of parties with regard to all or any of the matters in controversy in the suit. Therefore, the order did not amount to a decree at all. There was no occasion for drawing up a decree. The General Rules and Circular Orders (Civil) issued by this Court in Chapter V, Part-I, under Rule 11 provide that decree or formal order need not be (drawn up in a case of this type.

( 3 ) MR. Sinha for the petitioners has relied upon series of authorities to show that the order is revisable. See Ramrao v. Appanna, AIR 1940 Bom 121 (FB); hriday Nath v. Ram Chandra, AIR 1921 Cal 34 (FB); Mithai v. Hasan Ali, AIR 1930 All 863 and Kulandai v. Ramaswami, AIR 1928 Mad 416.

( 4 ) THE grounds given by the plaintiff in her application for withdrawal are contained in the application dated 14-3-1975. She objected to the report of the commissioner but the report was accepted. She wanted a second commissioner to be taken through court. That prayer was rejected. She came before this court challenging the rejection but this Court did not interfere; yet observed that it was open to the plaintiff to take a commissioner of her own and examine him as a witness on her side. When she applied to the trial Court some time after, the Court declined to adjourn the matter. Therefore, commissioner could not be taken. This is no ground for asking for withdrawal of a suit. It is sufficient to refer to two authorities on the point: (1966) 32 Cut LT 864 (Dwarka v. Mst. Sashiprabha Gountiani) and AIR 1956 Bom 632