Court may dismiss the suit and award to the defendant the costs which he has incurred in defending the same, to be proved as a debt against the plaintiff's estate.

Act VIII of 1859; C. L. P. Act, 1852, section 142. This section applies to H. C. and P. S. C. C.

This section only applies to actions pending when the bankruptcy or insolvency occurs-Stanton vs. Collier, 23 L. J., Q. B., 116. It does not declare that the assignee shall be made a party to the suit, as the Act does in the case of persons representing a party deceased. The practice in India has been to add or substitute the assignee's name, and he may be called on to deposit the costs of an appeal-Heeralal Seal vs. Carapiet, 13 W. R., 431; Ibrahim vs. Abdur Rahiman, 12 Bom., 257.

Defendant cannot plead the abatement without giving the official assignee an opportunity of prosecuting the suit-Ibrahim vs. Abdur Rahiman, 12 Bom., 257.

Trustees in Bankruptcy.-See Jackson vs. N. E. Ry., 5 Q. B., 844.
Form of Order.—Lekhraj vs. Shamlal, I. L. R., 16 Bom., 404.

371.

When a suit abates or is dismissed under this

Effect of abatement

or dismissal.

Application to set

aside abatement or dis

missal.

Chapter, no fresh suit shall be brought on

the same cause of action.

But the person claiming to be the legal representative of the deceased or bankrupt or insolvent plaintiff may apply for an order to set aside the order for abatement or dismissal; and, if it be proved that he was prevented by any sufficient cause from continuing the suit, the Court shall set aside the abatement or dismissal upon such terms as to costs or otherwise as it thinks fit.

This section applies to H. C. and P. S. C. C.

Object of the Section.-This section only refers to orders passed under the last paragraph of section 368, and the second paragraph of section 370-Bessessur Bhugut vs. Murli, I. L. R., 9 Cal., 163; and see Goddard vs. Poole, W. N., 1875, p, 230.

Practice.-A Judge can make an order under section 366, ante coupled with an order under this section-Fulvahu vs. Goculdas, I. L. R., 9 Bom., 275.

When plaintiff dies testate, and there is difficulty in obtaining probate of his will mere neglect to apply for limited administration will not be a bar to obtaining an order under this section-Bhoyrub Doss vs. Doman, 4 C. L. R., 374. See also Fulvahu vs. Goculdas, I. L. R., 9 Bom., 275.

No Fresh Suit-This clause does not take away plaintiff's right to bring a new suit, after a former action abated (under section 102, Act VIII of 1859-Pallikunath vs. Mullankaji, I. L. R., 3 Mad., 31; Bepin Behari vs. Brojonath, I. L. R., 8 Cal., 357.

It has been held not to apply to the case of a defendant or respondent who has died or become insolvent-Suri Bhatta vs. Sitarama, I. L. R., 7 Mad., 195; but now see section 582, post.

Limitation.-An application under this section or under this section and section 582, post, to revive must be made within sixty days from the order of abatement or dismissal-Act VIII of 1888, section 66.

Procedure in case of

suit.

372. In other cases of assignment, creation or devolution of any interest pending the suit, the assignment pending suit may, with the leave of the Court, given either with the consent of all parties or after service of notice in writing upon them, and hearing their objections, if any, be continued by or against the person

to whom such interest has come either in addition to or in substitution for the person from whom it has passed, as the case may require.

Judicature Acts, Order 50, Rule 3. This section applies to H. C. and P. S. C. C.

"Other Cases."-That is cases other than those mentioned in the preceding sections-Benode Mohini vs. Sharat Chunder, I. L. R., 8 Cal., 837; (compare Jamnadas vs. Sorabji, I. L. R., 16 Bom. 27); such as the case of assignment by a respondent who subsequently died-Rajaram vs. Jibai, I. L. R., 9 Bom., 151; where the assignee_is_arrayed on the same side of the suit as his assignor-Radha Prasad vs. Rajendra, I. L. R., 5 Alla., 209.

Official Assignee-The official assignee in insolvency proceedings instituted before suit brought against the insolvent cannot be made a party under this section-Miller vs. Budh Singh, I. L. R., 18 Cal., 43.

In Addition to or in Substitution.-See Jamnadas vs. Sorabji, I. L. R., 16 Bom., 27. All parties whose interests may be attached, such as purchasers, or assignees pendente lite, should be added as parties-Ahmedbhoy vs. Vulleebhoy, I. L. R., 8 Bom., 323. Application.-See" APPLICATION," section 368, ante.

Pending the Suit.-This section has been held to apply to the case where one of the defendants died after decree in a suit for partition-Sham Lal vs. Monemohine, 5 C. L. R., 109; and where, in a suit respecting a will, there was a decree that a scheme should be settled, but that decree was not proceeded with, and no scheme was settled, no final order made, the suit was treated as pending-Gocool_ Chunder vs. Administrator-General, 5 C. L. R., 569; Govind Chunder vs, Rungunmoney, I. L. R., 6 Cal., 60.

The Court may revive without consent or notice, when the parties who ought to give consent or get notice are dead-Gocool Chunder vs. The Administrator-General,

L. R., 569.

This section does not apply to any assignment, creation or devolution of any interest after the passing of the decree. It does not apply to execution-proceedings. A attached 24 bank shares as the property of B. C sued A for them as his own property, and gaining obtained possession of the shares and sold them to D. On appeal A succeeded: Held, he was not entitled to put D on the record of the execution-case and enforce restitution against him-Raynor vs. Mussoorie Bank, I. L. R., 7 Alla., 681; Goodall vs. Mussoorie Bank, I. L. R., 10 Alla., 97.

Looking at sections 232, 233, it would seem as if this section would not apply to execution of decrees assigned by the decree-holder. A Court is not bound to re-admit the assignee of a decree to execute it-Bishtoo Churn vs. Kishen Gopal, 13 W. R. 207; but when a decree is sold, and the sale is admitted, the judgment-debtor cannot contest the right of the purchaser to execute it—(Id.); Sunnobarnissa Khanum vs. Meherchand, W. R., 1864, p. 313.

An assignee or purchaser of a decree takes it subject to the right of set-off, section 230, ante-Opendro Mohun vs. Poorno Chunder, 19 W. R., 85; Kaim Ali vs. Luckhy Kant, 10 W. R., F. B., 32.

A Hindu widow sold a portion of her interest in a suit to A, and died after decree : Held, A only brought her life-interest, and could not execute the decree-Govind Narain vs. Gour Monee, 17 W. R., 20.

Appeals.-This section applies to appeals-Rajaram vs. Jibai, I. L. R., 9 Bom., 151 and section 582, post.

Power for Court to extend period of limitation prescribed for certain applications.

372A. The provisions of section 5 of the Indian Limitation Act, 1877, applicable to appeals, shall apply to applications under sections 365, 366, 368 and 371.

This section has been added by Act VII of 1888, section 34.

373. If, at

Power to allow plain

tiff to withdraw with liberty to bring fresh suit.

CHAPTER XXII.

OF THE WITHDRAWAL AND ADJUSTMENT OF SUITS. any time after the institution of the suit, the Court is satisfied on the application of the plaintiff (a) that the suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for permitting him to withdraw from the suit or to abandon part of his claim with liberty to bring a fresh suit for the subject-matter of the suit or in respect of the part so abandoned, the Court many grant such permission on such terms as to costs or otherwise as it thinks fit.

If the plaintiff withdraw from the suit, or abandon part of his claim, without such permission, he shall be liable for such costs as the Court may award, and shall be precluded from bringing a fresh suit for the same matter or in respect of the same part.

Nothing in this section shall be deemed to authorize the Court to permit one of several plaintiffs to withdraw without the consent of others.

Act YIII of 1859, section 97. This section applies to H. C. and P. S. C. C.

The words "at any time after the institution of the suit" would seem to imply that leave to withdraw can be given by any Court, Original or Appellate. In Watson vs. The Collector of Zillah Rajshahye, 13 Moore, 160, the Privy Council decided that there was no power in the Courts in India similar to that exercised by the Courts of Equity and Common Law in England to dismiss a suit with liberty to bring a fresh suit for the same matter or to enter a non-suit. Their power was limited to questions of form: (1) of mis-joinder of parties or of matters in suit; (2) where a material document had been rejected for not having a proper stamp and; (3) where there had been an improper valuation of the subject-matter of the suit, but not to cases where issue had been joined, and the plaintiff failed to produce evidence in support of the issues. This decision referred to the procedure in force in 1857, and not to Act VIII of 1859, but has been applied to the Procedure Code-See the case of Muddum Ram Doss vs. Israil Ali, 21 W. R., 291; Bundwari Das vs. Mashiat, I. L. R., 9 Alla., 690, and where a suit for possession of property was dismissed on the ground that plaintiff could not prove his title to the whole property although he could to the extent of one-third, it was held that the decision was res judicata in regard to the one-third, although the decree declared he could bring a second suit for it-Sukh Lal vs. Bhikhi, I. L. R., 11 Alla., 187. Under Act VIII of 1859, the Court granted leave to withdraw in regular appeal.Khatoon Koonwar vs. Hardoot Narain, 20 W. R., 163; Gregory vs. Dooley Chand 14 W. R., O. J., 17; and even in special appeal-Juggunnath Deb vs. Moheboollah, 17 W. R., 164 and this was the procedure followed in Madras-Kareem Bee vs. Begum Bee, 3 Mad., 368. In Act VIII the corresponding section ran as follows: At any time before final judgement." So that where leave was granted in and not before the final judgement, the point was seized hold of to set aside the order-Sheoraj Nundun vs. Rajcoomar, 24 W. R., 23. The words "final judgement" have been omitted, and on the whole the better opinion seems to be that this section applies to a suit at any stage, whether in the Original or Appellate Courts, and even to proceedings in execution-Subbaramien vs. Ponnusawmy, 5 Mad., 298; Gunga Ram vs. Data, I. L. R., 8 Alla., 82; though not to suits under Act Xof 1859-Beer Chunder vs. Tarinee Churn, 11 W. R., 46: but see Womanath Roy vs. Sreenath, 15 W. R., 260.

Under the Dekkhan Agriculturists' Relief Act the Special Judge has only a limited power to call for and examine a record. Held, if the application to revise does not show jurisdiction he cannot allow a withdrawal-Muktaji vs. Managi, I. L. R., 12 Bom., 684.

Leave Granted.-Leave has been granted where the plaintiffs were desirous of registering a document on which the suit was based-Misser Debee Pershad vs. Buldeo, 5 Alla., 116; or unable to adduce evidence within the period fixed by the Court for hearing-Koomar Poresh vs. Surut Soonduree, 16 W. R., 100; when important evidence had been wrongly admitted by the first Court--Gregory vs. Dooley Chand, 14 W. R., O. J. App., 17; where the plaintiff had a good claim for contribution; and the best evidence to determine the amount had not been given-Khatoon Koonwar vs. Hardoot Narain, 20 W. R., 163; or where the form of the suit was bad-Juggunnath vs. Moheboollah, 17 W. R., 164; but perhaps the rule is different if the suit must fail on the meritsZahurrunnissa vs. Khudo, I. L. R., 3 Alla., 528.

Plaintiff can recall his petition of withdrawal any time before the final order has been passed-Rambhuros Lall vs. Gopee Bebee, 6 Alla., 66; but see Rajah Shumsher Bahadoor vs. Mirza Mahomed Ali Beg, 3 Agra, 158.

It has been held that a Court may allow one of several co-plaintiffs to withdraw from a suit without power to bring another, even though the other co-plaintiffs do not consentMohamaya Chowdharain vs. Durga Churn Shaha, 9 C. L. R., 332.

Leave not Granted.-In Madras, a party cannot withdraw at all without sanctionKareem Bee vs. Begum Bee, 3 Mad., 368; in Bengal, if the plaintiff withdraws without express permission to bring a fresh suit, he is precluded from filing a second suit for the same matter-Juggobundo Chatterjee vs. Watson, Bourke, 162; Aboo Telah vs. Abdool Nubee, 20 W. R., 415; and if the record does not indicate that permission has been granted, the applicant should apply for a review-Pearee Mohun Dutt vs. Goroodass Dutt, 20 W. R., 401. It is not necessary that a suit brought under Act VIII (B. C.) of 1869 should be withdrawn in order to bring a suit under the present Procedure CodeJallaloodeen vs. Burne, 18 W. R., 99; but see Ram Churn Banerjee vs. Torita Churn Paul, 18 W. R., 343.

A person withdrawing without sanction is now liable for costs. This set aside the case of Brass vs. Teruvengada Pillai, 1 Mad., 247. See Kareem Bee vs. Begum Bee, 3 Mad., 368.

Arbitration.-After an action has been referred to arbitration and the case has not been withdrawn from the arbitrators, a Judge has no jurisdiction to allow a withdrawal ex-parte-Sheoambar vs. Devdat, I. L. R., 9 Alla., 168, and if the arbitrator finds the facts in regard to all but a small portion against the plaintiff, the plaintiff should not be allowed to withdraw-Statel Schmidt vs. Walford, 4 Q. B. D., 217.

This Section does Apply.-This section applies to rent-suits in the North-West Provinces-Madho Prakash vs. Murli, I. L. R., 5 Alla., 406; and to execution-proceedings -Sarju vs. Seta Ram, I. L. R., 10 Alla., 71; not so-Radha Kishen vs. Radha Pershad, I. L. R., 18 Cal., 515, section 375A, infra. It applies only to cases in which the plaintiff withdraws his suit without the defendant's consent. Thus, where plaintiff, in pursuance of an agreement to submit the dispute to arbitration entered into with the defendant, withdrew his suit without leave of the Court, it was held that a new suit was not barred by this section-Juggobundo Chatterjee vs. Watson, Bourke, 162. He might also have sued to enforce the agreement-Golab Singh vs. Cheda Singh, 3 Agra, 135.

It does not apply if the suit is not against the same parties-Mukhoda Sunduri vs. Ramchurn, 11 C. L. R., 194.

Minor-See section 462, post.

Form of Order. The proper order to be recorded is not one of dismissal, but one simply permitting the applicant to withdraw the suit with liberty to bring a fresh suit for the same matter on payment of costs or otherwise as the Court may think fit-Doucett vs. Wise 1 W. R., 322; and see the form in Gregory vs. Dooley Chand, 14 W. R., O. J., 17; and where the suit was dismissed with liberty to bring a fresh suit, the decision was set aside on appeal-Banwari Das vs. Muhammad, I. L. R., 9 Alla, 690.

Where an Appellate Court, instead of deciding upon an appeal, referred the appellant to a new suit, the order, whether right or wrong, if accepted by the parties, is binding on them-Rajib Sarkhel vs. Rajah Nilmonee Singh Deo, 20 W. R., 44.

Effect of Order.-Where a suit was withdrawn in order to bring a fresh suit which would include a portion of the claim arising out of the cause of action, but not included in the suit withdrawn, it was held that the additional portion of the claim was not barred under section 7, Act VIII of 1859-Ilia Baksh vs. Imam Baksh, I. L. R., 1 Alla., 324. See also The London Bank vs. Burjorji, I. L. R., 9 Bom., 346.

The effect of withdrawing an appeal, no matter what the terms of the compromise may be, is that the decision of the Lower Court is res judicata on the points raised in itVythilinga vs. Vijoyaltammal, I. L. R., 6 Mad., 43; and its decree can be executed→ Patloji vs. Ganu, I. L. R., 15 Bom., 370; but the statement of facts stated in the compromise cannot be impugned save for fraud or the like-Nilakandan vs. Padmanabha, 1. L. R., 14 Mad., 153.

Practice.-No order should be passed without notice to the opposite party-Kalian Singh vs. Lakhraj Singh, I. L. R., 6 Alla., 211; Misser Debee Pershad vs. Buldeo, 5 Alla., 116. As a rule of practice, the other side should be served with due notice of the application for leave, when it is made after the notice of the day fixed for hearing has been issued-Kareem Bee vs. Begum Bee, 3 Mad., 368.

Stamp on Application.-See Reference, I. L. R., 8 Mad., 15.

Appeal. No apeal lies-Kalian Singh vs. Lakhraj Singh, I. L. R., 6 Alla., 211; Jogodindro vs. Sarut, I. L. R., 18 Cal., 322; an appeal does lie-Gunga Ram vs. Data, I. L. R., 8 Alla., $2.

Limitation.-Where an appeal is allowed to be withdrawn after the respondent has filed ojections, this by itself is not a sufficient reason for extending the period of appeal in favour of the respondent desiring to appeal-Gour Huri vs. Pran Nath, 12 C. L. R., 395. See note on section 561, post.

374. In any fresh suit instituted on permission granted

Limitation law not affected by first suits.

under the last preceding section, the plaintiff shall be bound by the law of limitation in the same manner as if the first suit had not been brought.

Act VIII of 1859, section 97. This section applies to H. C. and P. S. C. C.

The parties to a suit executed a written agreement, which was duly registered, whereby the plaintiff agreed to withdraw the suit and accept, by way of purchase the property of the defendant specified in the agreement, in adjustment of the suit. The agreement was not recorded. Plaintiff proceeded with his suit, obtained a decree, and sold the property and more in execution. Defendant appealed, but his appeal was dismissed, on the ground that the agreement entered into was not a final adjustment of the suit which would preclude its being proceeded with. Defendant then sued for specific performance; but his suit was dismissed under section 2 of Act VIII. Finally, he sued for damages on account of the sale of the property not mentioned in the agreement, and it was held that he was entitled to recover-Thota Venkata Chella Sami Chettior vs. Kristnasawmy Iyer, 8 Mad., 1.

Compromise of suit.

375. If a suit be adjusted wholly or in part by any lawful agreement or compromise, or if the defendant satisfy the plaintiff in respect to the whole or any part of the matter of the suit, such agreement, compromise or satisfaction shall be recorded, and the Court shall pass a decree in accordance therewith so far as it relates to the suit, and such decree shall be final, so far as relates to so much of the subject-matter of the suit as is dealt with by the agreement, compromise or satisfaction.

Act VIII of 1859, section 98. This section applies to H. C. and P. S. C. C. Mortgage. This section can not be extended to proceedings held under section 83 of Act IV of 1882-Tatayya vs. Pichayya, I. L. R., 13 Mad., 316.

When Complete.-The Sudder Dewany held that, before deeds of adjustment, withdrawal of claim, or the like, which may have been filed in Court by a petition, have been brought before the Court for its order and decree in the case, a plaintiff is at full liberty, on his own responsibility, to recall any such application and ask the Court for judgment on the merits; and nothing but the act perfected by acknowledgment in Court, and the Court's sanction and adoption of it can deprive him of the right-Syed Mehdee Alee Khan, S. D., Sum. Decis., May 22nd, 1851; and this rule has been followed in Calcutta; Harasundari vs. Kumar Dukhinessur, I. L. R., 11 Cal., 250; and see Bandhu vs. Shas Muhammad, I. L. R., 14 Alla., 350; but this is not the rule in Bombay or Madras-Buttonrey Lalji vs. Pooribal, I. L. R., 7 Bom., 304; The Goculdass Manufac turing Coy. vs. Scott, I. L. R., 15 Bom., 209; Karuppan vs. Ramasami, I. L. R., 8 Mad., 482; Appasami vs. Manikram, I. L. R., 9, Mad., 103; but whichever view is correct, whether the question is decided on motion or in a suit, the order is not void. See Gilbert vs. Endean, 9 C. D., 259.