The Judgment of the Court was delivered by

Umamaheswaram, J.

2. Masulipatam Municipality represented by the Commissioner is the appellant in Appeal No. 366 of 1956 and the petitioner in C.R.Ps 805 and 806 of 1956. The appeal as well as the revision petitions arise out of O.S No. 41 of 1952 on the file of the Subordinate Judge's Court, Masulipatam instituted by Rallabhanda Ramachandrayya (since deceased) for appointment of an administrator to take possession of all moveable and immoveable properties of late J.V Subba Rao and to pay off the legacies to the plaintiff and other legatees mentioned in plaint D schedule and for carrying out all the objects and directions set forth in the will of the testator dt. 20-6-1942 and marked as Ex. A-2. The suit was originally filed against three defendants. The 1st and 2nd defendants were executors and trustees of the estate of late J.V Subbarao. The 3rd defendant claimed that the was he adopted son of late J.V Subba Rao. The appellant was added as the 4th defendant by reason of the order passed on I.A No. 11648 of 1952 dt. 10-1-55. The 1st plaintiff having died during the pendency of the suit, his son was added as the 2nd plaintiff. The administration suit was instituted on 12-1-1952. On the application of the appellant-4th defendant, the Municipality was added as a party, as already stated on 10-1-1955. The legacy amount due to the plaintiff was tendered on 29-2-1952 but still the suit was instituted for administering the estate of late J.V Subba Rao. Along with the written statement, the amount due to the plaintiff was deposited into court on 9-12-1952. On 24-2-1955, the 2nd plaintiff made an endorsement on the plaint in the following terms:

“Plaintiff No. 2, added as legal representative of Plaintiff No. 1, admits that his claim is adjusted and that he does not press his suit so far as he is concerned.”

3. Soon after, the 4th defendant filed I.A No. 314 of 1955 under Order I Rule 10 and section 151 C.P.C to transpose him as 3rd plaintiff and permit him to prosecute the suit. I.A No. 315 was filed by him under O. I, R. 10 C.P.C to transpose him as petitioner in I.A No. 476 of 1952 filed by the 1st plaintiff for permission to sue under Order 1 Rule 8 C.P.C on behalf of the legatees under the will of late J.V Subba Rao. The learned Subordinate Judge dismissed the two applications and permitted the plaintiff to withdraw the suit as per the endorsement on the plaint. The 4th defendant, aggrieved by the order passed by the Subordinate Judge, Masulipatnam, has preferred the appeal against the decree and the revision petitions as against the order on his applications.

4. Sri A.S Chowdry, the Learned Addl. Government Pleader, contended that the court below erred in dismissing the two applications and not transposing the 4th defendant as the 3rd plaintiff in the suit. He also contended that the court below erred in permitting the 2nd plaintiff to withdraw the suit. So, the questions that arise for consideration in the appeal and the revision petitions are: (1) Whether the suit comes to an end when the 2nd plaintiff expressed his unequivocal intention to withdraw the suit? (2) Whether, having regard to the fact that the suit is an administration suit, the 4th defendant is to be treated as being in the position, of a plaintiff and transposed as the 3rd plaintiff? (3) Whether, in any event, under the provisions of O. I, R. 10 C.P.C, the 4th defendant is to be transposed and added as the 3rd plaintiff?

5. It is clear from the allegations in the plaint that the suit was filed by one of the legatees under the will dated 20-6-1942. In paragraph 6(e) the plaintiff alleged that the testator intended to construct four gates in the Robertsonpeta, Masulipatam, to be named as his parents and himself and his wife and directed his executors and trustees to construct them from out of the estate funds. In paragraph 11, he stated that as a member of the public and as a rate payer of Masulipatnam Municipality, he is interested in working out the directions contained in the will in respect of the construction of the gates in Roberstsonpeta. He also filed an application under O. I Rule 8 C.P.C to permit him to sue on behalf of all the legatees mentioned in schedule D. The court ordered notices to the persons interested by advertisement in Krishna Patrika, but no final order under O. I, R. 8 C.P.C was passed entitling the 1st Plaintiff to sue on behalf of all the legatees. As there was a settlement between the two executors impleaded as defendants 1 and 2 and the 3rd defendant, the estate was handed over to the 3rd defendant. As stated supra, the amount due to the plaintiff was deposited into court on 9-12-1952. The 4th defendant was added as a party only on 10-1-1955.

6. As regards the nature of an administration suit, there is an elaborate discussion by Mookerjee, J. in Shashti Bhushan Bose v. Maindra Chandra Nandy . I.L.R 44 Cal. 890. in dealing with the question as to what court fees should be paid in an administration suit by a creditor. The Learned Judge referred to the decisions of the English Courts in which one of the creditors was permitted to sue not only on behalf of himself but on behalf of others for administration. At page 896, he pointed out that it is well-settled that where one creditor sues on behalf of himself and others for administration of the estate of the debtor, the defendant may, at any time before judgment, have the action dismissed on payment of the plaintiff's debt and all the costs of the action. Reference was made to Pemberton v. Topham . 1839-I Beav. 316., Holen v. Kynaston . 1840-2-Beav. 204. and Manton v. Roe . 1844-14 Sim. 353. The decision of the Madras High Court which applied this principle in Athalur Malakondiah v. Lakshminarasimhalu Chetty . 26 M.L.J 312. was also relied on. The same view was taken by a later Bench of the Madras High Court in Ramaswami Ayyar v. Rangaswami Ayyar . I.L.R 55 Mad. 26.. The reference (as to the dismissal of the administration suit on payment of the Plaintiff's debt) made in all the decisions referred to supra is to the passage in Daniell's Chancery Practice, Seventh Edn., Vol. I, at page 195.

7. Sri P. Suryanarayana, the learned Advocate for the 4th respondent, invited our attention to a passage from Halsbury's Laws of England (Simmonds Edn.) Third Edn., Vol. 16 at page 437, which is as follows:—

“Until judgment the creditor, though suing on behalf of himself and all other creditors, is dominus litis, and may deal with the action as he pleases: but the judgment enures for the benefit of all creditors, and the plaintiff creditor cannot subsequently thereto accept payment of his debt and allow the action to be dismissed.”

8. To the same effect is the passage in Williams on Executors and Administrators, thirteenth Edn., Vol. 2, at page 1142. The position is stated in the following terms:

“Until an order for administration has been made the plaintiff is dominus litis, so that he may deal with the action as he pleases. He may settle the matter with the personal representative by the latter paying the debt and costs of the action, and compromise the action and relinquish proceedings indeed, the court will compel the creditors to accept payment of his debt if the personal representative offers to pay it with the costs of the action.”

9. That there is no distinction between an administration suit instituted by a creditor and an administration suit instituted by a legatee is pointed out in Athalur Malakondiah v. Lakshminarasimhalu Chetty. It is therefore clear from the authorities and the text books referred to supra that the 2nd plaintiff, who is the dominus litis, is entitled to withdraw his suit on the payment of his legacy amount. It is only after a preliminary decree is passed under the provisions of O. XX R. 13 C.P.C that the plaintiff would not be entitled to withdraw the administration suit filed by him.

10. The next question that arises is whether the suit is terminated as soon as the 2nd plaintiff had endorsed his intention to withdraw the suit by making an endorsement on the plaint. This depends upon the true construction of O. 23 R. 1(1) read with sub-rule (3) of O. 23, R. 1 C.P.C O. 23 R. 1(1) and (3) are in the following terms:

Sub-rule (1): At any time after the institution of a suit the plaintiff may as against all of any of the defendants, withdraw his suit or abandon part of his claim.

Sub-rule (3): Where the plaintiff withdraws from a suit, or abandons part of a claim, without the permission referred to in sub-rule (2), he shall be liable for such costs as the court may award and shall be precluded from instituting any fresh suit in respect of such part of the claim.”

11. As regards the interpretation of O. 23 R. 1(1) read with sub-rule (3), there is a conflict of opinion in the decisions of Madras High Court as also other High Courts, so far as the provisions of O. 23 R. 1(2) and O. 23(3) are concerned, there is no difficulty whatsoever. Under O. 23. R. 1(2), an order by the Court has to be passed granting the plaintiff permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of a claim, when it is satisfied (1) that a suit must fail by reason of some formal defect or (2) that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim. Similarly, when the parties enter into a compromise, it has to be proved to the satisfaction of the court that the suit has been adjusted wholly or in part by any lawful agreement or compromise and a decree will be passed only after he court is satisfied about the truth and validity of the compromise.

12. Construing the provisions of O. 23. R. 3, C.P.C, it was held by one of us (Umamaheswaram, J.) in Venkata Narasimha Raju v. Yellamanda that till a compromise decree is passed under O. 23 R. 3 C.P.C the litigation cannot be regarded to have terminated. The decision in Nanjammal v. Eswaramurthi also related to the interpretation of the terms of O. 23 R. 3 C.P.C The learned Judges rightly held that the mere existence of the compromise in the hands of the party would not be sufficient to terminate the suit so as to preclude the Court from exercising its jurisdiction under O. 22 R. 10 C.P.C The same consideration would also apply to an application for withdrawal under O. 23 R. 1(2) C.P.C in as much as the court has to apply its mind before passing an order under that sub-section.

13. Dealing with the scope of O. 23 R. 1, C.P.C Sadasiva Aiyar, J., delivering the judgment of the Bench in Lakshman Chetty v. Muthaya Chetty held as follows:—

“O. 23 R. 1 of the Civil Procedure Code relates to withdrawal of suits. So far as an unconditional withdrawal is concerned, it is of course wholly at the option of the plaintiff and the court has nothing to do with it except as regards providing for costs already incurred (See. O. 23 R. 1 clause 1). It is only where he wants some permission that he has to make an application under clause 2.”

14. A similar view was taken by the Bombay High Court in Mahant Biharidasji v. Parshotamdas. Sir Lawrence Jenkins, C.J, dealing with the corresponding Section 373 under the Old Code stated as follows:—

“It contemplates a withdrawal not of the suit but from the suit, and such a withdrawal may be either with or without liberty to bring a fresh suit. If a party desires to withdraw from the suit with such liberty, then he must apply to the court to permit him so to withdraw. If he does not desire to have that liberty, then he can withdraw of his own motion and no order of the court is necessary.”

15. A similar view was expressed by a single Judge of the Madras High Court in Veeraswami v. Lakshmudu. According to the learned Judge, O. 23 R. 1(1) gives the plaintiff the liberty to withdraw from a suit unconditionally and that no leave or order is necessary; for this reference was made to the decisions referred to supra. No reference was made to the decision of the Madras High Court in Seethai Achi v. Meyyappa Chetti, which has taken a more liberal view of the provisions of O. 23 R. 1 and 3. The Learned Judges held in Seethai Achi v. Meyyappa Chetti, that the court does not become functus officio the moment the plaintiff announces the fact of withdrawal. Referring to the decision of the Calcutta High Court in Ram Churn Bysack v. Mrs. Ripsimah Harmi, the learned Judges observed that the decision should not be carred too far to lead to the position that the court is deprived of all jurisdiction over the case, so that it would not even pass an appropriate order indicating the disposal of the suit. The decision of the Bombay High Court in Mahant Biharidasji v. Parshotamdas was distinguished and the decision of Curgenven, J. in Kunju Kombi Achan v. Anmu was followed. The learned Judges expressed the opinion that as the court had still to pass an order regarding costs under O. 23. R. 3 C.P.C it ought not to be held that the suit is terminated as soon as the plaintiff announces his intention to withdraw it. They also referred by way of analogy to a suit for partition. It is clear law that if a preliminary decree is passed declaring and defining the shares of the several parties, the suit will not be dismissed by reason of any subsequent withdrawal by the plaintiff for the obvious reason that the rights conferred in favour of the defendant in the preliminary decree would be rendered nugatory if the suit should simply be dismissed. Partnership suits and suits for accounts in which preliminary decrees are passed also stand on the same footing. We are inclined to share the liberal view expressed in Seethai Achi v. Meyyappa Chetti that without the stroke of the judicial pen under O. 23 R. 1 sub-rule (3) C.P.C, the suit is not terminated and that in appropriate cases the provisions of O. I R. 10 or O. 22 R. 10 C.P.C may be applied.

16. If the narrower or technical view propounded by Sadasiva Aiyar, J. in Lakshmanan Chetty v. Muthayya Chetty and by Sir Lawrence Jenkins, C.J in Mahant Biharidasji v. Parshotamdas is the correct view, there is no jurisdiction for the court to entertain an application under O. I, R. 10 C.P.C and transpose the 4th defendant as the 3rd plaintiff.

17. But, even if the broader view is taken under O. 23 R. 1(1) read with sub-rule (3) as interpreted in Seethai Achi v. Meyyappa Chetti we are not inclined, on the facts of this case, to transpose the 4th defendant as the 3rd plaintiff in the suit. The 4th defendant cannot be transposed as the 3rd plaintiff under the provisions of O. I, R. 10(1) C.P.C in as much as the suit has not been instituted in the name of a wrong person as the plaintiff, and it is also not doubtful whether it has been instituted in the name of the right plaintiff. The 1st plaintiff sued as a legatee and as a result of the adjustment the 2nd plaintiff had applied for the withdrawal of the suit. Sri Chowdry the learned Advocate for the appellant, contended that under the provisions of O. I, R. 10(2), the court might transpose one of the defendants as a part-plaintiff. In support of this proposition he relied upon the decision of the Calcutta High Court in Brojendra Kumar Das v. Govinda Mohan Das and also the decision of the Madras High Court in Md. Sirajuddin v. Shah Gulam . A.I.R 1920 Mad. 732.. Construing the terms of O. I, R. 10(2) C.P.C Sadasiva Aiyar, J. held at page 735 in Md. Sirajuddin v. Shah Gulam:

“That the language of Or. I, R. 10, Cl. (2) is wide enough to give the courts powers to add either plaintiff or defendant any person (that is, whether already a party as defendant or plaintiff) so as to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit, of course a man cannot be both plaintiff and defendant in the same capacity, but he has only to be removed as plaintiff before being added as defendant or removed as defendant before made the plaintiff (with his consent, of course in the latter case).”

18. Though no specific reference was made to the provisions of sub-Rule (2) of O.I.R 10 C.P.C, Sir George Lowndes expressed the same view in Bhupendra v. Rajeswar. The relevant passage is as follows:—

“The proforma defendants asked that a decree should be passed in favour of the appellant. If there was a technical objection to this, the court clearly had power at any stage of the proceeding to remedy the defect under O. I, R. 10 C.P.C by adding the pro-forma defendants as co-plaintiffs with the appellant. Such a course should, in their Lordships' opinion always be adopted where it is necessary for a complete adjudication upon the questions involved in the suit and to avoid multiplicity of proceedings.”

19. It is clear on the facts of this case that several of the legatees had instituted suits for recovering the amounts due to them. The learned Subordinate Judge referred to this fact in pragraph 12 of the judgment and gave reference to the various suits that were instituted by the legatees. It is also contended on behalf of the 3rd defendant that there is no specific or valid legacy in favour of the 4th defendant. Cl. 15 of the will provides only as follows:—

“I promissed to get constructed, the gates in the street of Robertsonpet, Bander, and deposited Rs. 4000/- in the Municipality. Some work has been carried out. The remaining work shall be got completed by the executors”

20. While the plaintiff stated in schedule D that according to this clause, a sum of Rs. 70,000/- is payable to the Municipality, the 4th defendant claimed in the written statement a sum of Rs. 1,35,000/-. It is also represented that the claim of the 5th defendant has been settled and that the 8th defendant had instituted a suit. The Subordinate Judge exercised his discretion under O. I, R. 10 C.P.C and held that the proper course was to direct the 4th defendant to institute a separate suit for the vindication of his rights, if any. It also appears that one of the executors appointed under the will Nagapothurao is dead and that no executor in his place has been appointed in accordance with the provisions of the will. The 4th defendant might consequently in our opinion institute a properly framed suit for vindicating his rights.

21. Though we are inclined to follow the decision of the Madras High Court in Seethat Achi v. Meyyappa Chetti that the court has jurisdiction to exercise the power under O. I, R. 10 C.P.C in appropriate cases, we are loath on the particular facts of this case to interfere with the discretion exercised by the Subordinate Judge in relegating the 4th Defendant to his remedy by way of separate suit. We are also definitely of the view that on payment of the legacy amount due to the plaintiff, he was entitled to withdraw the suit.

22. In the result, the appeal fails and is dismissed with costs of the 4th respondent. The Advocate's fee is fixed at Rs. 500/-. There will be no order as to costs in respect of the other respondents.

23. The civil revision petitions are also dismissed with costs of the 4th respondent. There will be no order as to costs in respect of the other respondents.

24. M.S.K

Appeal and Petitions dismissed.