Transposition in appeal under CPC remains maintainable after withdrawal, and earlier restoration dismissal does not bar reconsideration.

Order XXIII Rule 1A and Order I Rule 10 CPC can apply to an appeal where practicable because an appeal is a continuation of the suit. A respondent may seek transposition as appellant even after the appeal has been withdrawn or dismissed as withdrawn, and the request cannot be rejected merely because it was made in appellate proceedings. Dismissal of an earlier restoration application does not bar fresh consideration of transposition if there was no adjudication on that issue. The application was held maintainable, the rejection was not sustained, and the matter was required to be reconsidered on merits.

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Issues: Whether a respondent in an appeal can seek transposition as appellant under Order XXIII Rule 1A read with Order I Rule 10 of the Code of Civil Procedure after the appeal has been withdrawn or dismissed as withdrawn, and whether such application can be considered notwithstanding the dismissal of an earlier restoration application.

Analysis: The principles underlying Order XXIII Rule 1A and Order I Rule 10 are not confined to suits alone, because an appeal is a continuation of the suit and procedural provisions applicable to suits can be applied to appeals where practicable. The withdrawal or abandonment of the appeal does not by itself defeat the right to seek transposition, and the application cannot be rejected merely because it was filed in appeal rather than in suit. The dismissal of the earlier restoration application, without an adjudication on the merits of transposition, does not foreclose fresh consideration of the request for transposition, and if the applicant is otherwise entitled, the appeal can be restored to enable prosecution of the matter.

Conclusion: The application for transposition was held to be maintainable and the matter was required to be reconsidered on merits; the rejection of the application was not sustained.

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