IN THE HIGH COURT OF JUDICATURE AT PATNA First Appeal No.119 of 1996 Sheo Prasad Singh & Ors Versus Ramadhar Singh & Ors ---------------------------------- 23. 09.09.2011 Heard the learned counsel Mr. Kundan Bahadur Singh appearing on behalf of the plaintiffs respondent and also Mr. Kaushal Kumar appearing on behalf of the appellants on the interlocutory application No. 4499 of 2011. This interlocutory application has been filed by the plaintiffs respondents for recall of the order dated 23.8.2011 whereby the appeal was permitted to be withdrawn unconditionally on the prayer of the appellants. The learned counsel of the respondents submitted that when vested right had accrued in favour of the respondents the appellants could not have allowed to withdraw the appeal as a matter of right. In support of his contention the learned counsel relied upon the decision of Hon’ble Apex Court reported in 1973 SC 643 R. Ramamurthi Aiyar (Dead) by L.Rs. Vs.Raja V. Rajeshwararao and AIR 1979 Patna 73 Basudeb Narayan Singh and others Vs. Shesh Narayan Singh and others. From perusal of the aforesaid decisions it appears that it has been held that the plaintiffs cannot be allowed to withdraw a suit if a right which has already vested in the defendant either on account of a 2 compromise or a concession or a decree or an award or similar circumstances. It is well settled principles of law that so far the provision as contained in Order 23 Rule 1 of the Code of Civil Procedure is concerned it is applicable in cases of appeal also as has been held by the Hon’ble Apex Court in AIR 1963 SC 1566 Bijayananda Patnaik Vs. Satrughna Sahu and others. In a decision reported in (2005) 1 BLJR (Pat) 323 Jaya Shankar Singh Vs. Champa Devi and others this court has held that the plaintiff had an unqualified right to withdraw a suit simplicitor as per provisions of Order 23 Rule 1 sub Rule 1 C.P.C. which contains no provision which require the Court to refuse permission to withdraw the suit and compel the plaintiff to proceed with it especially when no set up has been claimed by the defendant nor any counter claim has been raised by them. Admittedly, in the present case at our hand, the plaintiffs’ suit for declaration that the memorandum of partition is genuine, valid and binding upon the parties has been decreed by the trial court. To execute the said judgment and decree the plaintiffs respondents has filed an execution case. Now the appellants withdrew the first appeal unconditionally and, therefore, the trial court judgment and decree remained intact. The plaintiffs respondents are at liberty to execute the same. So far recall of the order allowing the appellants to withdraw the appeal is concerned there is no provision in C.P.C. to compel the 3 appellants to continue with this litigation particularly, when he is not interested in pursuing the appeal. So far accruing any vested right is concerned no such right has accrued in the present case as the suit of the plaintiffs respondents have already been decreed which is now at present is not being challenged by the appellants. In such view of the matter, I find no force in the application filed by the respondents plaintiffs and, therefore, it is dismissed. S.S. (Mungeshwar Sahoo, J.)