Civil Revision No.2216 of 2007 Against judgment and order dated 14.9.2007, passed by the learned Addl. District Judge –Fast Track Court No.I, Katihar, in Title Appeal no.22/93. 1. Laxmi Rai son of Late Hari Rai 2. Smt. Savitri Devi, D/o Late Hari Rai, w/o Triloki Rai 3. Sri Triloki Rai, S/o Late Chamru Rai 4. Narayan Rai, S/o Late Hari Rai - All residents of Uma Devi Girls High School Road, at Katihar, District Katihar .... Defendants-Appellants-Petitioners Versus 1. Sanjai Bhattacharya s/o of Late Dr. Parashar Prasad Bhattacharya 2. Smt. Ratna Mazumdar, D/o Late Dr. Parashar Prasad Bhattacharya 3. Smt. Sapna Bhattacharya, D/o Late Dr. Parashar Prasad Bhattacharya - All residents of New Market, Katihar, PS & PO & District Katihar ....Plaintiffs- Respondents –Opposite Parties ********* For the Petitioners : Mr. P.K Jaipuriyar For the Opp.Parties : Mr. A B Ojha P R E S E N T HON’BLE MR. JUSTICE SUDHIR KUMAR KATRIAR S K KATRIAR, J. The judgment-debtors are the petitioners in the present civil revision application preferred under the provisions of section 115 of the Code of Civil Procedure (hereinafter referred to as `the Code’), and challenge the order dated 14.9.2007, passed by the learned Additional District Judge, Fast Track Court I, Katihar, in Title Appeal no.22/93, whereby the application preferred by them under the provisions of section 107, read with Order 23 Rule 1(1) of the Code, has been rejected, and their application for permission to withdraw the appeal has been rejected. 2. A brief statement of facts essential for the disposal of this application may be indicated. The opposite parties herein had instituted Title 2 Suit no.16/85, for declaration of title and recovery of possession against the present petitioners. The same was allowed by judgment and decree dated 23.9.93, passed by the learned Sub Judge III, Katihar. Aggrieved by the same, the defendants (petitioners herein) preferred the aforesaid appeal. The appellants, i.e. the judgment-debtors (petitioners herein), filed an application under Order 23, Rule 1, read with section 107 of the Code on 25.7.2007, before the learned appellate court seeking permission to withdraw the appeal, inter alia, on the ground that the decree has become inexecutable because the decree-holders had levied execution bearing Execution Case no.1/2007, before the learned Sub Judge, Katihar, having been filed beyond the prescribed period of limitation. On contest, and by a detailed order, the learned appellate court has rejected the application seeking permission to withdraw the appeal on various grounds. Hence this civil revision application at the instance of the judgment-debtors. 3. While assailing the validity of the impugned order, learned counsel for the judgment-debtors submits that there is no cause of action for the appeal execution case having been levied after expiry of the period of limitation. He next submits that the plaintiff, or for that matter the appellant, had an absolute right to withdraw the same particularly in a situation where no appeal, cross- objection, counter-claim, set off at the instance of the decree-holders, has been preferred. He submits in the same vein that the appellant seeks permission to withdraw the appeal unconditionally and with a clear undertaking to the court not to re-file the appeal against the judgment and decree of the learned trial court under any circumstance whatsoever. He relies on the following reported judgments:- (i) (1964) Vol.2 SCR 538 at Page 548= AIR 1963 SC 1566 (Pr.7) Bijayananda Patnaik vs. Satrughna Sahu & Ors. 3 (ii) AIR 1968 SC 111 Judgment of the Supreme Court in M/s Hulas Rai v. K B Bass (iii) The order of a learned Single Judge of this Court in Jaya Shankar Singh v. Champa Devi 2005(1) BLJR 323 He next submits that the learned appellate court had erred in observing that the judgment –debtors have not come with clean hands. No fraud, misrepresentation or the like is attributable to the judgment-debtors. He relies on the judgment of the Supreme Court in Raghunath Rai Bareja vs. Punjab National Bank [(2007) 2 SCC 230]. He further submits that the learned appellate court has erred in observing that the jdugment-debtors (the appellants there) delayed disposal of the appeal. He lastly submits that the doctrine of merger does not apply to the facts and circumstances of the present case. 4. Learned counsel for the opposite parties (the decree-holders) has supported the impugned order. He submits that it is not a case of withdrawal simpliciter. The judgment-debtors cannot be permitted to withdraw the appeal on the ground that the execution case has become time-barred. He submits in the same vein that he has no objection if the application to withdraw the appeal is allowed with the observation that “the appeal stands dismissed as withdrawn”. He next submits that the provisions of Order 23, rule 1(1) are discretionary in nature. The learned appellate court has exercised its discretion and refused permission to withdraw the appeal for valid grounds discussed in the impugned judgment. He relies on the judgment of the Supreme Court in the case of K S Bhoopathy v Kokila (AIR 2000 SC 2132, Para 12). He next submits that even after withdrawal of the appeal, the judgment and decree of the learned trial court merges into the order of the learned appellate court. He submits in the same vein that the period of limitation in terms of Article 136 of the Limitation Act to levy execution case commences from the date of the appellate decree. He relies on the 4 following reported judgments :- (i) Judgment of the Privy Council in Nagendra Nath Dey vs. Suresh Chandra Dey (1932 Vol. 59 Indian Appeals 283 = AIR 1932 Privy Council 165 (ii) Judgment of the Supreme Court in Lakshmi Narayan Guin v. Niranjan Modak (AIR 1985 SC 111) (iii) Full Bench judgment of this Court in Jokhan Rai vs. Baikunth Nath Singh (AIR 1987 PATNA 133), wherein reliance has been placed on the said judgment of the Privy Council and the Supreme Court. He lastly submits that the judgment-debtors kept the appeal pending for twelve years and cannot therefore be permitted to take undue advantage of the delay in levy of execution case. 5. We have perused the materials on record and considered the submissions of the learned counsel for the parties. Order 23 of the Code is headed “Withdrawal and adjustment of suits.” Rule 1 provides for “Withdrawal of suit or abandonment of part of claim”. Order 23, rule 1 of the Code is reproduced hereinbelow:- Order XXIII WITHDRAWAL AND ADJUSTMENT OF SUITS 1. Withdrawal of suit or abandonment of part of claim.- (1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim: Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court.” The same fell for consideration of the Supreme court in Bijayananda vs. Satrughan Sahu (supra), wherein it has been observed that the provisions of Order 23, rule 1(1) and (3) also apply in the same manner to withdrawal of appeals. It is thus evident that the judgment-debtor’s application for withdrawal of the appeal was competent. It has further been laid down that the appellant has 5 an absolute right to withdraw the appeal and no discretion is left in the court to prohibit the same. 6. The judgment of the Supreme Court in Hulas Rai vs. K B Bass (supra), may also be noticed. That was a case for rendition of accounts by the principal, issues were framed, and some evidence were recorded. No preliminary decree was passed. Permission was sought to withdraw the suit, which was allowed. The matter travelled to the Supreme Court and it has been observed in the judgment that there is no provision in the Code which requires the court to refuse permission to withdraw the suit in such circumstances and to compel the plaintiff to proceed with it. It is of course possible that different considerations may arise where a set-off may have been claimed under Order 8, or a counter- claim may have been filed, if permissible by the procedural law applicable to the proceedings governing the suit. 7. In the instant case, the application of the judgment-debtors seeking permission to withdraw the appeal is all the more strengthened by their undertaking to the court that they shall under no circumstance re-file an appeal against the impugned judgment and decree, and the decree-holders have not filed an appeal or counter-claim or a claim for set-off against the impugned judgment and decree. The application of the judgment-debtor is entirely covered by the aforesaid two judgments of the Supreme Court and the application for withdrawal has to be allowed. To the same has to be added that they are taking the risk of withdrawing the appeal that they shall under no circumstance prefer a fresh appeal. 8. Learned counsel for the petitioners (the judgment-debtors) has rightly submitted that the execution case was levied after their application for withdrawal was filed. Delayed institution of execution case was entirely of the 6 volition of the decree-holders, the law will take its own course, and the benefit, if any, in favour of the judgment-debtors cannot be denied. As observed by the Supreme Court in the aforesaid two judgments, there is no provision in the Code which empowers the court to refuse permission to withdraw the suit and to compel the plaintiff to proceed with it. The learned appellate court has obviously erred in declining permission to withdraw the appeal. 9. The learned appellate court has committed a gross error of record in observing in the impugned order that the judgment-debtors/appellants have delayed disposal of the appeal for twelve years. Excepting this bald sentence, no material at all has been discussed to reach this conclusion nor any material has been brought to our notice to reach the conclusion which is Ex Facie unwarranted in law. It is not possible to accept this sweeping comment against the judgment-debtors. Learned counsel for the petitioners (judgment-debtors) has rightly relied on the judgment of the Supreme Court in Raghunath Rai Bareja vrs. Punjab National Bank (supra), wherein the Supreme Court has observed that, in the event of conflict between law and equity, it is the law which has to prevail in such cases, equity can at best can supplement the law, but it cannot supplant or override it - Dura Lex Sed Lex – the law is harsh, but it is the law. 10. It is evident from the foregoing discussion that the present issue is entirely governed by Order 23, rule 1 in which case there is no scope for the observation, as has been erroneously made by the appellate court, that the judgment-debtors have not come with clean hands. No material has been discussed in the impugned judgment, nor has anything been brought to our notice to satisfy us, that the judgment-debtors are guilty of any fraud, misrepresentation or the like, and in the absence of which any observation to the effect that the judgment-debtors have filed this application with unclean hands. Furthermore, 7 this principle of law may be applicable to discretionary jurisdictions, and it is doubtful whether it is applicable to jurisdictions which can be invoked by the plaintiff or the appellant as a matter of right. Law is well settled that a suit is the basic remedy of the citizens in this country and, if instituted, has got to be adjudicated resulting in a decree or dismissal provided it satisfies three conditions indicated above. Once these three conditions are satisfied, a suit has got to be carried to its logical conclusion and there is no discretion in the court to refuse to entertain it. The same principle is applicable to a statutory appeal which has got to be adjudicated and there is no discretion in the court to dismiss it at the threshhold, which may be possible in a discretionary jurisdiction like writ jurisdiction, or civil revisional jurisdiction under section 115 of the Code. 11. The learned trail court has rejected the application in question, inter alia, on the ground that the judgment and decree of the learned trial court merges into that of the appellate court and, therefore, the period of limitation commences from the date of the order of the learned appellate court. Learned counsel for the decree-holders (the opposite parties herein) have made detailed submissions supporting this part of the discussion in the impugned judgment. The contention is stated only to be rejected for the reason that the principle of merger of the judgment of the learned trial court into that of the learned appellate court shall not apply in a situation where the appellant has been permitted to withdraw the appeal under Order 23, rule 1. In view of the settled position in law, we do not feel the necessity of discussing the judgments cited by the learned counsel for the opposite parties herein. Suffice it to say that the three judgments cited by the learned counsel for the opposite parties on the point of doctrine of merger were cases where the learned appellate court had finally disposed of the appeal. Therefore, the court had applied the doctrine of merger and proceeded to 8 observe that the period of limitation in terms of Article 136 of the Constitution commenced, not from the date of the judgment and decree of the learned trial court, but from that of the learned appellate court. 12. Learned counsel for the opposite parties has also submitted that the provisions of Order 23, rule 1 is discretionary in nature. The learned appellate court having exercised its jurisdiction in favour of the decree-holders, it is not given to this court, which is a court of very limited jurisdiction under Section 115 of the Code, to interfere with the same. The contention is stated only to be rejected for the reason that the provisions of Order 23, rule 1 has been held by the Supreme Court in the aforesaid two judgments to be mandatory in nature, and there is no discretion in the court concerned to decline permission to withdraw the suit or the appeal. 13. Learned counsel for the opposite parties submits that the jdugment-debtors kept the appeal pending for twelve years and cannot, therefore, be permitted to take advantage of the delay in filing the execution case. He relies on the judgment of the Division Bench of Calcutta High Court in Priya Brata Maity vs. State of West Bengal (AIR 2000 CAL 320). It was held that levy of execution case was not dependent on conclusion of the appeal. It was perfectly within the absolute right of the appellant to withdraw the appeal. Secondly, the judgment of the Calcutta High Court dealt with a suit where fraud and/or misrepresentation was attributable to the party concerned and, therefore, permission to withdraw the appeal was declined in a situation where the party was guilty of obtaining order which had led to demolition of the house of the other side. Furthermore, we cannot overlook the situation that the appeal did not arise under the Code, but was directed against the order of a learned Single Judge of the Calcutta High Court passed in writ jurisdiction. The judgment is wholly 9 inapplicable to the facts and circumstances of the present case. 14. In the result, we disagree with the impugned order dated 14.9.2007, passed by the learned Additional District Judge cum Fast Track Court No.I, Katihar, in Title Appeal no.22/1993, and is hereby set aside. The withdrawal application filed by the appellants (the judgment-debtors) is hereby allowed with their clear undertaking that under no circumstance they shall again file an appeal against the judgment and decree of the learned trial court impugned in the appeal. Title Appeal no.22 of 1993 stands withdrawn at the risk of the appellants (judgment-debtors). We wish to make it clear that we have been very cautious in not making any observation with respect to the merits of execution case which is not before us for our consideration. Any observation made inadvertently with respect to the execution case shall be confined to the present civil revision application, and shall be completely ignored by the learned execution court. 12. This civil revision application is allowed. ( S K Katriar, J.) Patna High Court, Patna The 19th of October 2011 AFR/mrl