Indian Kanoon - Search engine for Indian Law

19. Then comes the question, is a dismissal upon withdrawal also a mere recognition that the appellant has not complied with requisite conditions, or is it a decree?

20. Although the withdrawal of an appeal is mentioned in Order 41, Rule 22(4) the Code nowhere lays down the procedure of the Court upon such withdrawal, and any consequent dismissal must presumably be under Section 151, Civil Procedure Code.

21. In Bombay it may not be the practice to dismiss; for in Patioji v. Ganu (1890) I.L.R. 15 Bom. 370 the High Court appears simply to have permitted withdrawal; and such permission was held not to be a decree.

27. If the principle applicable to non-compliance of conditions is extended to withdrawal, it may lead to deplorable, results.

28. A mortgagee obtains a preliminary decree, which becomes inconclusive by reason of an appeal being lodged. Then if preliminary conditions are not complied with, in all human probability, although the decree-holder is thrown back upon the original date of his decree, he will be within three years, and may not have much cause to complain that the unjustifiable action of his judgment-debtor in preferring an infructuous appeal has deprived him of several months to which the statute entitled him. But suppose the preliminary conditions are duly complied with, and the appeal comes on for hearing, and then the appellants withdraw. Then the decree-holder may find himself time-barred; for in these days an appeal may well be pending over three years. No doubt in such circumstances the Court might refuse withdrawal; but it is startling to consider that the perfectly normal and natural order of the Court "Withdrawn Dismissed. Costs to respondents" would have the effect of unsuiting the respondents as barred by limitation.