WITHDRAWAL FROM SUIT. 237 and was not in any way prejudiced. Jugmohun Singh v. Debi Parskad, S. W. R. (1864) Áct X. R,, 47. A certificate under Act XXVII. of 1860, is not necessary to give to a person claiming to be the representative of a decased creditor the right to institute a suit to recover a debt due to the estate of the deceased, or the right to present an application for execution of a decree obtained by the deceased. But such certificate, or a probate, or letters of administration, must be produced by the person procceding as representative before a decree or order can be passed, or process of execution issued, for payment of the debt due, except the Court should think that payment is withheld from fraudulent or vexatious motives, and not from any reasonable doubt as to the party entitled, A certificate once granted, and which, though liable to cancellation under Article 12 of Schedule I. of Act VII. of 1870, has not been cancelled, remains in full force as proof of the representative rights of the grantee (VI. 131). Govindappah v. Kondappah Sustrube, &c., M. H. C. Rep., VI. 131. CHAPTER XXII. Cessante causâ cessat effectus. Ir after instituting suit plaintiff satisfy the Court that his suit must fail because of some formal defect, or that there are sufficient grounds for allowing him to withdraw from whole or part of his claim, with liberty to sue again for what he thus abandons, Court may permit him to withdraw on fitting terms as to costs, &c. If there be several plaintiffs, he cannot be allowed to withdraw without their consent; and if he withdraw without Court's permission, he is liable for such costs as Court may award, and can bring no fresh suit for same matter. The law of limitation is in no wise affected by the first suit. When suits are adjusted by lawful agreement, compromise, or satisfaction, such arrangement must be recorded. Court must pass decree in accordance therewith as far as it relates to suit, and such decree shall be final. (2) This permission should not be given where, after issue joined, plaintiff has failed to make out his case. Watsony. Collector of Rajshahaye, B. L. R., III.,P. C.,49. Nor where final judgment has been pronounced. Rajah Sheoraj Nundun Singh v. Rajcoomar Baboo Deo Nundun Singh, S. W. R., 1875, XXIV. 23. A Court is not bound to allow a plaintiff to A suit founded on a compromise, which The prohibitory clause does not apply to make payment of the costs of the first The order to withdraw does not necessarily suit a condition precedent to plaintiff's bringing a fresh suit, and in that case Court has no power to stay proceedings in the second suit on the ground of the costs of the first remaining unpaid. Chitto Sheikh v. Kayee Muggur Hossein, Hyde, II. 212. A Judge has a discretion, when parties have A plaintiff may rescind an act of withdrawal If the plaintiff withdraw from the suit, or abandon part of his claim, without such permission, he shall be liable for such costs as the Court may award, and shall be precluded from bringing a fresh suit for the same matter. Nothing in this section shall be deemed to authorize the Court to permit one of several plaintiffs to withdraw without the consent of the others. Limitation law not affected by first suit. M. 374. (97) In any fresh suit instituted on permission granted under the last preceding section, the plaintiff shall be bound by the law of limitation in the same manner as if the first suit had not been brought. M. 375 (98) If a suit be adjusted by any lawful agreement or compromise, or if the defenCompromise of suits. dant satisfy the plaintiff in respect to the matter of the suit, such agreement, compromise or satisfaction shall be recorded, and the Court shall pass a decree in accordance therewith, so far as it relates to the suit, and such decree shall be final. CHAPTER XXIII. OF PAYMENT INTO COURT. Deposit by defendant of M. 376. The defendant in any suit to recover a debt or damages may, at any stage of the suit, deposit in Court such sum of money as he considers a satisfaction in full of the claim. (q) amount in satisfaction of claim. Notice of deposit. M. 377. Notice of the deposit shall be given by the defendant to the plaintiff, and the amount of the deposit shall (unless the Court otherwise directs) be paid to the plaintiff on his application. M. 378. No interest Interest on sum deposited not allowed to plaintiff after receipt of notice. fall short thereof. Procedure where plaintiff accepts deposit as satisfaction in part. shall be allowed to the plaintiff on from the date of the receipt of any sum deposited by the defendant such notice, whether the sum deposited be in full of the claim or M. 379. If the plaintiff accept such amount only as satisfaction in part of his claim, he may prosecute his suit for the balance; and if the Court decides that the deposit by the defendant was a full satisfaction of the plaintiff's claim, the plaintiff must pay the costs of the suit incurred after the deposit, and the costs incurred previous thereto, so far as they were caused by excess in the plaintiff's claim. The proper order to put on record in these cases is an order permitting plaintiff to withdraw, with liberty to bring a fresh suit for the same matter. on payment of costs, &c. Doucett v. Wise, S. W. R., I. 322. In the Cen. Prov, inability to find a defendant and serve a summons on him has been laid down as sufficient cause. Execution cannot be issued upon a razinama unless the terms of it are embodied in a decree of the Court. Darbba Venkatta Sastry v. Verdla Gangaia, Mad. Rep., II. 305. Where a Civil Court refuses an application to execute a decree given on the terms of a petition embodying certain conditions of compromise, applicant's proper course is to appeal from the order of refusal, and not to proceed by a regular suit, though he has a right of action on his decree. Ruthnessur Chatterjee v. Gooroo Churun Chatterjee, S. W. R., IX. 296. Where a compromise being arranged between two brothers, a decree is passed on the footing of its terms, declaring that on the death of S. the property shall vest in R.: Held that R. has a valid cause of action for possession and mesne profits, but the decree itself is not an award of possession. Tara Moni Dasi v. Radha Jeebun Mustafee, ib. XIV. 485. A defendant cannot be deprived of the benefit of a compromise if one of several coplaintiffs does not join in appeal with the rest. Musst. Mullick v. Musst. Jumeela, B. L. R. P. C., XI. 375. When a compromise has been effected, and a party allowed to withdraw his suit, if the compromise has not been acted upon, the plaintiff is restored to his original right of action. On the contrary, if acted on, either in whole or in part, the plaintiff cannot be restored to his original right of action, but may bring a suit for the performance of the conditions uncomplied with. Held also, where a compromise is filed in Court, and a decree passed in accordance therewith, such decree must be first set aside before a second suit can be brought on the original cause of action. Ameer Begum v. Noor Begum, Agra Rep., F. B., I. 2. The effect of setting aside a compromise, whether owing to fraud or otherwise, held by the Privy Council to be the remission of both parties to their original rights; and if the plaintiff is allowed to be heard, on review, against so much of the original judgment as is unfavourable to him, the defendant must similarly be heard against so much of the same judgment as was unfavourable to him. Khajooroonnissa v. Rowshan Jehan, I. L. R. C., II. 184. A defendant cannot fall back on a deed of compromise conceding to the plaintiff a portion of his claim, after having subsequently contested the whole case on the merits, and run his chance of obtaining a decree dismissing the plaintiff's entire claim. Man Gobind Doss Mahapattur v. Jankee Ram Mohunt, S. W. R., 1864, 211. A Judge can restore a case to his file and rehear it, if he struck it off under the impression that it was compromised, and finds out that he was wrong in the supposition. Deen Dhyal Parmanick v. Ramcoomar Chaudhri, Wym. R., V. 54. An agreement by the parties to take an oath is not an adjustment within the meaning of this section. M. H. C., IV. 422. A decree-holder attached a defendant's property in execution. Subsequently to the attachment, petitioner's vakil presented a razinama petition to the Court on behalf of his client, praying that the attachment might be removed and execution stayed. An order was made granting the petition, and allowing the decree amount to be paid by instalments. Some months afterwards, the petitioner, charging the vakil with presenting the former petition fraudulently and without authority, applied to have his decree executed. was found that the vakil was authorized to present the petition, and that his con duct was not fraudulent: Held that such a petition as that presented by the vakil, even if within the scope of his duty, should not be permitted to alter the terms of a final decree. It The greatest caution should be exercísed by the Courts before acting upon statements out of the ordinary scope of the vakil's authority in the particular matter for which he was employed. B. Venkataramanva v. Chada Atchizacuma, M. H. C. Rep., VI. 127. CHAPTER XXIII. Nemo commodum capere potest de sua injuria. THIS is a new chapter. In any suit to recover debt or damage, at any stage defendant may deposit in Court such sum as he thinks satisfaction in full of claim. Notice of deposit is to be given by defendant to plaintiff, and amount, unless Court dire ct otherwise, paid to plaintiff on application. No interest on sum deposited will be allowed to plaintiff after his receipt of the notice, Plaintiff may accept it as Procedure where he accepts it as satisfaction in full. If the plaintiff accept such amount as satisfaction in full of his claim, he shall present to the Court a statement to that effect, and such statement shall be filed and the Court shall pass judgment accordingly, and in directing by whom the costs of each party are to be paid, the Court shall consider which of the parties is most to blame for the litigation. Illustration. (a) A owes B Rs. 100. B sues A for the amount, having made no demand for payment, and having no reason to believe that the delay caused by making a demand would place him at a disadvantage. On the plaint being filed, A pays the money into Court. B accepts it in full satisfaction of his claim, but the Court should not allow him any costs, the litigation being presumably groundless on his part, (b) B sues A under the circumstances mentioned in illustration (a). On the plaint being filed, A disputes the claim. Afterwards A pays the money into Court. B. accepts it in full satisfaction of his claim. The Court should also give B his costs of suit, A's conduct having shown that the litigation was necessary. (c) A owes B Rs. 100, and is willing to pay him that sum without suit. B claims Rs. 150, and sues A for that amount. On the plaint being filed, A pays Rs. 100 into Court, and disputes only his liability to pay the remaining Rs. 50. B accepts the Rs. 100 in full satisfaction of his claim. The Court should order him to pay A's costs. CHAPTER XXIV. OF REQUIRING SECURITY FOR COSTS. sub M, 380. (34, 35) If, at the institution or at any When security for costs sequent stage of a suit, it appears may be required from plain- to the Court that a sole plaintiff is, tiff at any stage of suit. or (when there are more plaintiffs than one) that all the plaintiffs are residing (r) out of British India, and that such plaintiff does not, or that no one of such plaintiffs does possess any sufficient immoveable (s) property within British India independent of the property in suit, the Court may, either of its own motion or on the application of any defendant, order the plaintiff or plaintiffs, within a time to be fixed by the order, to give security for the payment of all costs incurred and likely to be incurred by any defendant. Procedure where requisi tion is not complied with. M. 381. In the event of such security not being furnished within the time so fixed, the Court shall dismiss the suit unless the plaintiff or plaintiffs be permitted to withdraw therefrom under the provisions of section 373. M. 382. Whoever leaves British India under such circum Residence out of British India. stances as to afford reasonable probability that he will not be forthcoming whenever he may be called upon to pay costs, shall be deemed to be residing out of British India, within the meaning of section 380. satisfaction in part, and prosecute suit for balance. If Court decide that the deposit was full satisfaction, plaintiff must pay costs of suit incurred after deposit, and costs incurred previously so far as they were caused by excess claim. If he accept it as satisfaction in full, he must present statement to that effect, which shall be filed. Court shall pass judgment accordingly, and in directing what are to be costs of each party shall consider who was most to blame for the litigation, CHAPTER XXIV. AT any stage security for all costs likely to be incurred may be required from plaintiff, if it be found that he, or all of them, if there be more plaintiffs than one, are residing out of, or possess no immoveable property within, British India sufficient to pay costs. If it be not given within time required, Court shall dismiss suit unless plaintiff be allowed to withdraw from it, with Court's permission. Any one leaving British India under such circumstances that it is improbable he will be forthcoming to pay costs when called upon, is deemed to reside out of British India for the purposes of this chapter. (r) When it appears primâ facie that the defendant is going to leave India, with intent to remain absent so long that the plaintiff will or may be obstructed or delayed in the execution of any decree that may be passed against the defendant, he will be ordered, unless he shows good cause, to find security for the amount of the claim and the costs of the suit. And "good cause" must be either (1) that he is not going to leave India, or not for so long a time as will obstruct, or be likely to obstruct, the plaintiff should he succeed; or (2) that the suit is not a bonâ fide one; or (3) that even if it is, the institution of it has been vexatiously delayed till the defendant is about to depart from India, in order to embarrass or coerce him. Spence's Hotel Company, Limited v. Anderson and others, Ind. Jur., N. S., I. 294. When a plaintiff leaves the country before the case is decided, the proper course for the defendant is to apply to the Court to take security for costs before the case is decided; and if no security be furnished, the Court will pass judgment against the plaintiff by default. But if the defendant allows the case to go to judgment, the Court on appeal cannot pass any order calling for security for the costs of the lower Court, which must be left to be realized in execution. Re Calcutta and South-Eastern Railway Company, S. W. R., 217. (s) A leasehold is immoveable property within this section. Ullmann v. Justices of the Peace for Calcutta, B. L. R., III, App. 60. This section was held not to apply to a case where plaintiffs bring a suit for the administration or partition of property in which defendants admit they have a share. Russick Lal Dey v. Jaduburam Dey, B. L. R., X. App. 25. CHAPTER XXV. Potestas delegata non potest delegari. A.-Commissions to examine Witnesses. ANY Court in any suit may issue commissions for examination on interrogatories, &c., of persons resident within its jurisdiction, exempted from attendance in Court, or unable to attend from sickness or infirmity. It may issue them on its own motion, or on application, supported by affidavit, of any party to suit, or of witness to be examined, to any person for examination of persons (i) resident beyond jurisdiction, (ii) about to leave Court's limits before date on which they are required in Court, (iii) in civil and military employ who cannot attend Court without detriment to public service, to any Court within whose limits examinee resides, not being a High Court, which can most conveniently execute them. If such person be out of Court's jurisdiction, and resident within Presidency towns or Rangoon, the commission is issued to the Court of Small Causes, Under special circumstances, it may be issued to any person if Court issuing it, thinks fit. It will be returned to issuing Court, or Court subordinate thereto, as issuing Court may direct. When a witness is not within British India, Court applied to may, if satisfied that evidence is necessary, issue commission for his examination, |