Srinivasa Aiyangar, J.:— This is an appeal of defendant 2, the present owner of the equity of redemption in a suit by the mortgagee to enforce his security. The mortgagee was himself the owner of the lands. He sold them to defendant 1's deceased husband one Jatavallabar on 5th January 1899, who on the same day mortgaged them to the vendor to secure Rs. 11,000, the bulk of the price. The mortgagor covenanted to pay interest at half a rupee per cent, per month i.e, 6 per cent, per annum once every year. He agreed to pay Rs. 1,000, out of the principal amount on 30th July 1899 and the balance immediately the vendor mortgagee's minor sons attained majority, which event happened in April 1905, when the youngest of them became a major. In default of payment of the latter sum on the due date, the mortgagor agreed to pay interest at 12 annas per cent, (i.e) 9 per cent, per annum. Most of the interest has not been paid and no portion of the principal money and the suit is to recover the mortgage money by sale?of the security. The plaintiffs—the 1st is the mortgagee and the other two are his sons—claimed interest at the rate of 9 per cent, not merely on the sum of Rs. 10,000, but also on the sum of Rs. 1,000. It was allowed by the lower Court and the first point raised in the appeal is against that claim. The language of the mortgage-deed is quite plain and against the claim of the plaintiffs. The decree of the lower Court must be modified by allowing interest on the Rs. 1,000 at 6 per cent, per annum instead of 9 per cent.

2. The 2nd point is more serious and it is this.

3. The mortgagee in 1903 sued for the interest accrued due till then and for the Rs. 1,000 out of the principal. He prayed for the sale of a part of the security, viz., that specified in Sch. B to that plaint to realise the interest and of another part specified in Sch. A to realise the principal amount. Jatavallabar was the defendant 1 in that suit but he died before the trial and on his death, the present defendant 1 was brought on the record. Besides Jatavallabar, three other persons who apparently claimed the Sch. A property adversely to both the mortgagor and the mortgagae, were made defendants. Jatavallabar or the present defendant 1 did not appear to defend the suit, but the other defendants set up their adverse title. At the final hearing, the plaintiff after having adduced evidence as regards his claim for interest against the mortgagor, defendant 1 applied for leave to withdraw his claim for Rs. 1000, the first instalment of the principal, with liberty to file a fresh suit on the ground that he was not ready with his evidence to prove his title to sell the Sch. A properties with which alone the contesting defendants were concerned. This was allowed by the Judge and a mortgage-decree was passed for the interest by sale of the Sch. B properties; as regards the claim for Rs. 1,000 the order was:

“suit withdrawn in respect of Claim B with liberty to sue again and plaintiff to pay corresponding costs of defendants 2 to 4.”

4. The appellant contends that the order permitting the withdrawal was beyond the competence of the Court and is a nullity and the present suit, in so far as it includes a claim to recover Rs. 1,000 and the subsequent interest, is barred as the matter was res judicata. There is a short answer to this contention, viz., that if the previous order is a nullity, that being the only order which disposed of the claim for Rs. 1,000, that claim still remains undisposed of and must be tried, and, it has now been tried in this suit. In Kali Prasanna Sil v. Panehanan Nandi(1), which was principally relied on by the appellants, the 1st Court had dismissed the suit on the merits and in appeal, that dismissal was confirmed; but the appellate Court, in addition, purported to give leave to withdraw the suit, which permission was held to be a nullity. The result was the original dismissal of the suit became final and the matter became res judicata under S. 11, of the Code corresponding to S. 13 of the Code of 1882. That appears also to have been the case in Robert Watson & Co. v. Collector of Zillah Rajshahye(2). There was a dismissal of the suit for want of evidence which was a dismissal on the merits, as is shown conclusively by the subsequent proceedings in the case. There was first a summary appeal to the Sudder Court, but they held that the appeal must be brought by way of a regular appeal, i.e, not as an appeal from an order, but as from a decree on the merits; and on a regular appeal being preferred the appeal was dismissed: sea p. 164 of the report; Macpherson's Civil Procedure, Ch. 39, for summary appeals. There was no question of permission to withdraw, for there was no such procedure then, and there was only a statement that the order then passed which was a decree for dismissal was not intended to bar the plaintiffs from proceeding as if the action had not been brought. This statement, it was held by their Lordships, could not prevent the actual dismissal from operating as a bar to the maintainability of the subsequent suit under S. 2 of the Act of 1859, which corresponds to the present S. 11 of the Code. That those decisions do not affect the present case is obvious, for there had been no adjudication of any sort in the case on the claim of the plaintiff and the matter cannot therefore be treated as res judicata.

5. The decision of their Lordships in Parsotam Gir v. Narabada Gir(3) is conclusive on the point. In that case there was first a suit for recovery of possession of certain villages which was decreed by the first Court which decree, on appeal to the High Court, was reversed and the suit dismissed. The appellate Court however expressly stated that they were not deciding on the rights of the parties. A second suit was brought by the same plaintiff against the representative of the same defendant for the same reliefs and their Lordships, reversing the judgment of the High Court, held that the subject-matter of the second suit was not res judicata. The provisions of Cl. 3, O. 23, R. 1, do not help the appellant as there has been no withdrawal without permission and the appellant is not entitled to treat one portion of the order, that giving permission, as a nullity while holding the plaintiff bound by his withdrawal. It is not therefore necessary to express an opinion on the question, whether an order granting permission to withdraw with liberty to sue again, in a case where the Court grants such permission on an erroneous construction of the provisions of law which gives the power, is a nullity. But with all respect to the learned Judges who decided otherwise, I venture to doubt whether such an order is a nullity as one passed without jurisdiction, strictly so called.

6. When a Court is properly seized of jurisdiction of the subject-matter of a suit and of the parties, orders passed in violation of the provision of law regulating the further proceedings in the suit in relation to the subject-matter till termination of the suit cannot be said to be so totally without jurisdiction as to render them nullities. It can only amount to a material irregularity in the exercise of jurisdiction; for example, there is O. 1, R. 10, which gives power to the Court to add or strike out parties; if an improper order is made under that rule, can the parties ignore it and treat it as a nullity though such an order may be said to have been made in one sense without jurisdiction: see the language used by Lindley, L.J, in Mosor v. Marsden(4). Or again if an injunction is issued or a receiver appointed under conditions or in circumstances not coming within the terms of the sections conferring the power, can a party treat those orders as nullities? I think the true rule is that if the Court has jurisdiction to pass orders of a particular kind, that in a particular case it passed an order which it should not have passed is not a case of total want of jurisdiction so as to render that order a nullity. This is well illustrated by Gomatham Alamelu v. Komandur Krishna, macharlu(5), where a Court having general jurisdiction of such suits rendered judgment for recovery of land outside its territorial jurisdiction and yet that judgment was held not to be a nullity. The consequence of holding that an order giving permission to withdraw with liberty to sue again is a nullity and is capable of collateral attack may be serious.

7. The terms of a rule are wide, and in particular cases it may be very difficult to decide whether permission should or should not have been granted; orders improperly passed but with jurisdiction and orders passed without jurisdiction are incapable of precise definition. In this very case there was a serious argument that the order was quite proper, at any rate it was not one passed with out jurisdiction, though we are inclined to hold that the permission should not have been grantee. If a party who is dissatisfied with such an order is to be allowed to treat it as a nullity in a subsequent proceedings, without vacating the order by proper proceedings, the plaintiff may be subject to a serious risk, conceivably without any fault of his own. This was the view taken in Perumal v. Pichan(6) by my learned brother and another learned Judge of this Court which was not cited at the Bar and in Chhajju v. Khyali Ram(7) by the Allahabad High Court. This contention must therefore be disallowed. Two more points were taken, but were not pressed. The decree of the lower Court will therefore be modified in respect of interest as stated above and the appeal otherwise dis missed. The appellant will pay and receive proportionate costs here and in the Court below from the plaintiffs. The plaintiffs have preferred a memorandum of objections; but there is no sub-stance in the points taken and it must be dismissed with costs. It is argued that 9 per cent is to be substituted for 10 per cent as regards the principal, and the decree of the lower Court will be amended accordingly. C.R.P No. 1046 of 1915 is also dismissed, as it has now be come unnecessary.

Abdur Rahim, J.:— I agree.

S.N/R.K

8. Appeal partly allowed.