Withdrawal of appeal by counsel upheld where the appellant chose not to proceed and merits need not be decided.

Counsel's authority to state that an appeal would not be pursued continued until the proceeding was duly terminated under Order III Rule 4 CPC, and the appellate court had co-extensive power under Order XXIII Rule 1, read with Section 107(2), to permit abandonment of an appeal wholly or in part. Admission of the appeal did not remove that power, and the court was not required to decide the merits under Order XLI Rule 11 when the appellant chose not to proceed. The dismissal of the appeal as withdrawn was therefore upheld.

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Issues: Whether counsel had authority to state that the appeal would not be pursued, and whether the appellate court could dismiss the appeal as withdrawn without deciding the merits.

Analysis: Order III Rule 4 of the Code of Civil Procedure, 1908 authorises counsel to continue on record until the proceeding is duly terminated. Order XXIII Rule 1(1) and Rule 1(4), read with Section 107(2), extend the same principle to appeals and confer on the appellate court co-extensive power to permit an appellant to abandon the appeal wholly or in part. The fact that the appeal had been admitted did not take away the power to permit withdrawal, and the court was not bound to pronounce on the merits under Order XLI Rule 11 where the appellant chose not to proceed.

Conclusion: The dismissal of the appeal as withdrawn was lawful, and the challenge to the order failed.

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