Report No. 54
Withdrawal and Adjustment of Suits
23.1. Rules as to withdrawal and compromise of suits are contained in Order 23. These rules roughly correspond with the Rules of Court in England as to the discontinuance of suits.
23.2. Slade J. has dealt with the mode of dealing with compromises in Englandl. According to him there are various ways in which an action can be disposed of when terms of settlement are arrived at when the action comes on for trial or in the course of the hearing.
(1) The first one is very useful where the terms of compromise consist of an agreement by the defendant to pay a specified sum of money by specified instalments on specified dates. Here the court gives judgment for the total amount agreed to be paid, coupled with a stay of execution so long as the instalments are paid in accordance with the terms agreed.
(2) The second way, which is no doubt, more appropriate when the terms of settlement are not so straightforward as the mere payment of an agreed sum of money by specified instalments, is to secure an Order of the Court, made by consent, that the defendant, and, it may be, also the plaintiff,-shall do the things which they have respectively engaged themselves to do by the terms of settlement. In such a case the order would take this form. There would be the title and the preamble and then the order would recite, the terms having been agreed between the parties: It is ordered that "(a) the defendant do", etc., "(b) the plaintiff do", etc. making each of the agreed terms an order of the court that it should be carried out.
(3) The third method is what has become known as "the TOMLIN form of order".
Dashwood v. Dashwood, 1927 WN 8 (276), is cited as the authority for that statement of practice. The ANNUAL PRACTICE, 1955, P. 2007, goes on to say:
"After this decision Tomlin, J., stated that future when in action was proposed to be stayed on agreed terms to be scheduled to the order, the order should be as follows: and the plaintiff and defendant having agreed to the terms set forth in the schedule hereto, it is ordered that all further proceeding in this action be stayed except for the purpose of carrying such terms into effect. Liberty to apply as to carrying such terms into effect."
(4) The fourth method is an order of the court made by consent staying all further proceedings in the action on the terms agreed on.
(5) The fifth method, which was followed in the present case, is where there is no order of the court at all, the court merely being told by counsel that the case has been settled on the terms endorsed on counsels' briefs.
1. Green v. Rozen, (1955) 2 All ER 797.
23.3. Such a variety of methods of recording or acting on compromises is not met with in Indian practice. But there does exist a variety of methods of consensual dealings in connection with litigation-e.g. by making the Judge an arbitrator, by agreeing not to appeal, by stating a special case under Order 36, and the like. Some, but not all of these, fit in with fee procedure given in Order 23, rule 3, under which the court is empowered to record a settlement or compromise. The most important rules in Order 23, are rule 1 (withdrawal), and rule 3 (recording of compromise), and most of the problems that arise revolves around these rules.
Order 23, rule 1
23.4. Order 23, rule 1, speaks of two kinds of, "withdrawals" of suits, namely:-
(1) Withdrawal without permission of the Court to file a fresh suit, and
(2) Withdrawal with such permission.
The first is governed by sub-rule (1). The second is governed, by sub-rules (2) and (3). For convenience, the first kind of withdrawal may be described as "absolute" withdrawal1, while the second may be described as "qualified" withdrawal. The differences in the legal incidents of the two types of withdrawal are well-known. The point which is proposed to be raised here is one of terminology,-and the point is, that the use of the same expression to denote both the types of action is confusing. An ordinary litigant would certainly get confused, and sometimes even lawyers do not fully realise the difference between the two. The position would be improved by using the expression "abandonment" (of suit), where absolute withdrawal is intended.
1. Cf Amalgamated Electricals Co. v. Kululreddy, AIR 1970 Mys 155 (157), para. 12.
23.5. Accordingly, we recommend an amendment of Order 23, rule 1, so as to substitute the expression "abandonment". The following re-drafts are suggested for the purpose:-
Re-draft of Order 23, rule 1(1) -
"(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 part of his claim."
Order 23, rule 1(2)
Re-draft of Order 23, rule 1(2), 1(3) and 1(4)-
Substitute the word 'withdraw' for the word 'abandon'.
Re-draft of Order 23, rule 1(3)
(3) "Where the plaintiff abandons a suit, or abandons part of a claim, under sub-rule (1), he shall be liable for such costs as the court may award, and shall be precluded from instituting any fresh suit in respect of the subject-matter of such suit or such part of the claim."
Re-draft of Order 23, rule 1(4)
(4) "Nothing in this rule shall be deemed to authorise the court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw under sub-rule (2) without the consent of the others."
Order 23, rule 1 and execution proceedings
23.5A. The question how far Order 23, rule 1 applies to execution proceedings has som etim es arieen. For example, in Allahabad case1, the decree-holder filled an application on August 29, 1885 before the Subordinate Judge requesting that his case may be struck off for a short time. The Court granted the application, and recorded an order striking off the case "for the present". On August 28, 1888, the decree-holder filed another application for execution, to which the judgment debtors objected. The Subordinate Judge disallowed the objections. The judgment-debtors filed an appeal before the Allahabad High Court. The High Court allowed the appeal, and set aside the Order of the Subordinate Judge. Hence, aggrieved from this decision of the High Court, the decree-holder filed an appeal before their Lordships of the Privy Council which held that Order 23, rule 1 did not apply. The Privy Council observed1-
"After hearing the appellant ex-parte the Court came to the conclusion that "It is not suggested that section 373 (now Order 23, rule 1) of the Civil Procedure Code would of its own force apply to execution proceedings. The suggestion is that it is applied by force of section 647 (now section 141). But the whole of Chapter XIX of the Code, consisting of 121 sections, is devoted to the procedure in executions, and it would be surprising if the framers of the Code had intended to apply another procedure mostly unsuitable by saying in general terms that the procedure for suits should be followed as far as applicable."
Having taken all aspects into consideration, we are of the view that it would not be convenient to extend Order 23, rule 1 to execution proceedings.
1. Thakur Prasad v. Fakir Ullah, 1894 LR 17 All 601 (PC) followed in Ram Prasad Rai v. Mahesh Kaur, AIR 1922 Pat 525.
2. Thakur Prasad v. Fakir Ullah, ILR 17 All 601 (PC).