Withdrawal without liberty bars a fresh suit only; it is neither a decree nor res judicata against later defences.

An order recording withdrawal of a suit without liberty to file a fresh suit bars only a new suit on the same subject matter under Order XXIII Rule 1(4) CPC; it does not adjudicate rights, determine the controversy, or amount to a decree under Section 2(2) CPC. Because there was no decision on the merits, the withdrawal order also does not operate as res judicata in later proceedings. The provisions of Order IX Rule 9 and Order XXII Rule 10 CPC do not expand the effect of such withdrawal. Accordingly, defendants remained entitled to contest the validity of the conveyance in the subsequent suit.

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Issues: Whether an order permitting withdrawal of an earlier suit without liberty to file a fresh suit bars the defendants in subsequent litigation from raising a defence on the validity of the conveyance and whether such withdrawal order constitutes a decree or operates as res judicata.

Analysis: Order XXIII Rule 1(4) of the Code of Civil Procedure, 1908 precludes a fresh suit on the same subject matter when a plaintiff withdraws a suit without liberty, but that consequence is confined to institution of another suit. An order merely recording withdrawal does not adjudicate the controversy, does not determine rights in issue, and therefore does not amount to a decree within Section 2(2) of the Code of Civil Procedure, 1908. The provisions of Order IX Rule 9 of the Code of Civil Procedure, 1908 and Order XXII Rule 10 of the Code of Civil Procedure, 1908 deal with different situations and do not enlarge the effect of a withdrawal order into a decision on the merits. Since there was no adjudication in the earlier round, the defendants were not barred from disputing the validity of the conveyance in the later suit.

Conclusion: The withdrawal order did not create res judicata or a decree and did not preclude the defendants from raising their defence in the subsequent litigation.

Final Conclusion: The appeal succeeds because the High Court erred in treating the earlier withdrawal order as a bar to the defence in the later suit.

Ratio Decidendi: An order permitting withdrawal of a suit without liberty to sue again, absent adjudication on merits, bars only a fresh suit on the same subject matter and does not operate as a decree or res judicata against a defence in later proceedings.

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