KUMARI Vs. PRABHAKARAN

JUDGEMENT

(1.) I have heard the learned counsel on both sides regarding the maintainability of this Second Appeal preferred against a "Judgment" whereby the first appellate court has allowed the suit to be withdrawn with liberty to institute fresh suit in respect of the same subject matter. The respondent/plaintiff sued the appellants for a decree for prohibitory injunction claiming that appellants have surrendered possession of the plaint C schedule to the respondent.

(2.) The appellants resisted the suit claiming that they are still in possession of the plaint C schedule. The Trial Court dismissed the suit. The respondent filed A.S. No. 30 of 2009 in the court of learned IInd Additional District Judge, Thodupuzha. In that appeal, the respondent filed I.A. No. 662 of 2011 seeking permission to withdraw the appeal and the suit with liberty to file fresh suit in respect of the same subject - matter, invoking R. 1(3) of O.XXIII of the Code of Civil Procedure (for short 'the Code'). The said application was resisted by the appellant but allowed by the learned Additional District Judge. The learned Additional District Judge disposed of the appeal and LA. No. 662 of 2011 vide judgment dated 1.8.2011. The said judgment is under challenge.

(3.) Be it under S. 96 or S. 100 of the Code, an appeal is permitted only from a 'decree'. A 'decree', as per S. 2(2) of the Code is 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 alt or any of the matters in controversy in the suit. An order allowing the plaintiff to withdraw the suit does not conclusively determine the rights of the parties to the suit. On the other hand, the effect of an order allowing withdrawal of the suit is that all the proceedings taken therein including the judgment passed by the trial court (permission is granted in the appeal) will stand wiped out (see K. Sivaramaiah v. Rukmanu Animal, 2004 AIR(SC) 508 . It follows that (when the suit is allowed to be withdrawn at the appellate stage, it amounts to the judgment of the Trial Court and the suit being wiped out. There is no determination of the rights of the parties in dispute in the suit.