"14. From Bombay, we may travel to Madras and refer to the decision of that High Court in Dharma Raja v. K.M.Pethur Raja, AIR 1924 Mad. 79: ILR 46 Mad 811. In this case, the plaintiff had obtained a decree against the defendant against which only one of the defendants had filed an appeal while the rest of them did not challenge that decree. At the appellate stage, the plaintiff-respondent wanted to withdraw the suit against the appealing defendant so that the decree which had already been passed against other defendants who had not appealed, may be enjoyed by him. The High Court while rejecting the application of the plaintiff for withdrawal under Order 23, Rule 1, C.P.C. observed as under:"The provision of law relied on by the plaintiffs-respondents in O.23 R.1 of the Code of Civil Procedure, which provides for the withdrawal of a suit by a plaintiff and abandonment of part of his claim. Thus the rule gives as a matter of right and it is not disputed that a similar privilege is inherent in an appellant as regards his appeal; but we have not been referred to any ruling or provision of law which would extend this privilege to a plaintiffrespondent nor can we see any reason why, when the litigation has reached the stage of an appeal, the respondent should be allowed the right to defeat the appeal and prevent its being heard by the simple process of withdrawing his suit as against the appellant. It may of course be argued that, although this is not a right of the appellant, nevertheless it is in the discretion of the Court to allow him to do so but that will depend on considerations which, we think, have not been appreciated by the lower appellate Court."
