Judgement Appeal from a decree of the Chief Court (March 16, 1907) affirming a decree of the District Court of Delhi (May 26, 1903). On April 21, 1902, the respondent bank obtained a final decree against the Delhi Cotton Mills Company, Limited, for the sum of 97,506/. and interest; and on June 25, 1902, the premises and mills of the Delhi Cotton Mills Company were purchased as a going concern by the appellant for the sum of Rs.502,000. On August 20 in the same year the bank attached the said premises and mills in execution of its decree; and shortly afterwards the same were released on the appellant paying the decretal money into Court under protest. On August 28, 1902, the appellant sued for a return of the money so paid and also for Rs. 10,000 damages for trespass and illegal attachment. On November 18, 1902, the District Judge ruled " that the payment was entirely voluntary and for plaintiffs own interests and that his remedy is under ss. 69 and 70 of the Contract Act against the Delhi Cotton Mills," and accordingly dismissed the claim for its recovery. Further proceedings took place in reference to the second claim and issues relating thereto were settled. On December 20, 1902, the District Judge rejected the appellants petition that a decree should be drawn up dismissing the first claim and stated that the final decree would embody that dismissal. On April 16 and 17, 1903, oral and documentary evidence was given on behalf of both parties, and the case was then adjourned to a subsequent day. On May 25, 1903, the plaintiff filed a petition, praying that he might be allowed to withdraw from his claim for damages with liberty to bring a fresh suit, under s. 373, Civil Procedure Code, and further that a decree might be drawn up in respect of the part of the claim dismissed. The District Judge refused both petitions. Thereupon the plaintiffs pleader stated that his client unconditionally withdrew from his claim for damages, but not from that for the recovery of money. The defendant then applied to the Court for leave to call his witnesses and give evidence on all the issues. Upon this being granted the plaintiff said he ceased to appear in the case. Thereupon the plaintiffs pleader stated that his client unconditionally withdrew from his claim for damages, but not from that for the recovery of money. The defendant then applied to the Court for leave to call his witnesses and give evidence on all the issues. Upon this being granted the plaintiff said he ceased to appear in the case. The District Judge then adjourned the case till the next day, informing the plaintiff at the same time that if he desired to proceed with the case on the next day he would be allowed to do so. On the next day, namely, May 26, 1903, as the plaintiff said he was not appearing in the case, the District Judge dismissed the same in default, purporting to do so under s. 102, Civil Procedure Code. On appeal the Chief Court referred to a Full Bench the question whether or not an appeal lay from an order dismissing a suit under s. 102, and it was held by a majority that an appeal did not lie; and the Chief Court accordingly dismissed the appeal. Sir R. Finlay, K.C., De Gruyther, K.C., and 0Gorman, for the appellant, referred to ss. 102, 146, 154, 204, and 373 of the Civil Procedure Code, and contended that under all the circumstances the Court had no power to make an order of dismissal under s. 102; in other words, s. 102 did not apply, and the dismissal of the suit should have been decreed on the merits, in which case an appeal lay as of right. At the time the order was made the first claim of the plaint had been dismissed on the merits. The two claims were entirely distinct and separate, in no way dependent on each other. The appellant was entitled to abandon his second claim, and thereupon the whole suit should have been dismissed. The non-appearance of a plaintiff during the taking of evidence on behalf of the defendant in a claim which had been abandoned did not constitute such a non-appearance as is contemplated by s. 102 and did not justify the District Judges dismissal of the suit under that section instead of adjudicating by his decree on the merits. The non-appearance of a plaintiff during the taking of evidence on behalf of the defendant in a claim which had been abandoned did not constitute such a non-appearance as is contemplated by s. 102 and did not justify the District Judges dismissal of the suit under that section instead of adjudicating by his decree on the merits. There has been considerable conflict of decisions as to whether orders under s. 102 were appealable or not, but it was contended that that section did not apply and that the order complained of was not within the jurisdiction conferred thereby see Civil Procedure Code, s. 2, as to the meaning of decree. Reference was also made to Bengal Courts Act (XVIII. of 1884), s. 70, amended by Act XXV. of 1899, s. 70b, contained in s. 6, and to Fatima Khatoon Chowdrain v. Mahomed Jan Chowdhry (( 1868) 12 Moo. Ind. Ap. 65, 78.) and Dooli Chand v. Ramkishen Singh. (( 1881) L. R, 8 Ind. Ap. 93.) Levett, K.C., and A. M. Dunne, for the respondent, contended that under the circumstances the order of dismissal under s. 102 was valid. The judge, when he dismissed the first claim of .the suit, directed that the case should proceed on the question of damages and was right in holding that there was no necessity to draw up a decree until the whole suit was disposed of and a final order had been made adjudicating on both claims. The first claim was disallowed rather than dismissed ; at all events the order was interlocutory and not final. The framing of a decree was properly reserved until all the issues had been dealt with. Thereafter the appellant withdrew from his claim for damages and stated that he did not think that any finding on the issues relating thereto was necessary. The respondent, however, claimed that his evidence should be recorded so that the Court might come to a decision under s. 204, C. C. P., on all the issues raised. Thereupon the appellant stated both by himself and his counsel that he did not appear any longer; and the Court then ordered dismissal under s. 102. It was contended that the judge rightly considered that he had no option to do otherwise. The appellant had withdrawn from the case before its decision, and the decree of dismissal for non-appearance followed. Thereupon the appellant stated both by himself and his counsel that he did not appear any longer; and the Court then ordered dismissal under s. 102. It was contended that the judge rightly considered that he had no option to do otherwise. The appellant had withdrawn from the case before its decision, and the decree of dismissal for non-appearance followed. The order of November 18 was not a decree, and if appealable at all was only so under s. 588. There was no decision under s. 198. Reference was made to Tarakant Bannerjee v. Puddomoney Dossee. (( 1866) 10 Moo. Ind. Ap. 476; 5 Suth. W. R. P. C. 63.) Sir R. Finlay, K.C., in reply. The judgment of their Lordships was delivered by SIR ARTHUR WILSON. This appeal has been brought against a judgment and decree of the Chief Court of the Punjab, which affirmed the decision of the District Judge of Delhi. The circumstances out of which the appeal arises can be briefly stated, and, as, in their Lordships opinion, the case must go back to the Chief Court for further consideration, their Lordships think it desirable to say nothing about the case which is not absolutely necessary. In the year 1902 a case was pending, in which the National Bank of India was plaintiff and the Delhi Cotton Mills Company, Limited, defendant, and on April 21 of that year the Chief Court, on appeal, made a money decree in favour of the bank for a sum of over Rs.97,000 and interest. On June 25 in the same year the premises and mills of the Cotton Mills Company were purchased, as a going concern, by the present plaintiff, at public auction, for a sum very much larger than the amount of the banks decree. On August 15 in the same year the bank, in execution of their decree, obtained an attachment of the premises purchased by the plaintiff, and possession was taken under that attachment. In the same month of August the present plaintiff filed a petition in the District Court alleging that the attachment was wrongful, and that he was compelled to pay the balance due under the banks decree. He paid into Court accordingly and thus released the property from the attachment. In the same month of August the present plaintiff filed a petition in the District Court alleging that the attachment was wrongful, and that he was compelled to pay the balance due under the banks decree. He paid into Court accordingly and thus released the property from the attachment. On the following day the now plaintiff filed a plaint against the bank in the District Court, in which plaint he asked for two things—first for a decree for the amount which he had paid to release the property from attachment, and secondly for damages on the ground of the illegality of the attachment. It is unnecessary to follow in detail the proceedings in the case. It is enough to say that on November 18, 1902, the District Court made an order deciding that the principal claim of the plaintiff, namely, that relating to the sum paid to release the attachment, was unsustainable in law. The learned judge thus expressed himself " I therefore rule that the payment was entirely voluntary, and for plaintiffs own interests, and that his remedy is under ss. 69 and 70 of the Contract Act against the Delhi Cotton Mills, and I dismiss the case for recovery with costs. The case will proceed on the question of damages for illegal attachment." Their Lordships are of opinion that so far as concerns the recovery of the money paid to discharge the attachment this order of the District Court was a full determination, adverse to the plaintiff, of his claim in that respect. On December 3, 1902, the plaintiff petitioned that a decree might be drawn up embodying the dismissal of his claim for the money paid into Court. This petition was dismissed. The claim for damages still remained, and evidence bearing upon it was proceeded with. On May 25, 1903, the plaintiff asked to be allowed to withdraw his claim for damages under S; 373 of the Civil Procedure Code (that is to say, with liberty to sue again) and again asked that a decree should be drawn up with reference to the claim dismissed. These applications were refused ; and thereupon the plaintiff absolutely withdrew from the claim for damages, but not from that for the recovery of the money paid. After that the defendant proceeded to give evidence upon all the issues which had been raised, the plaintiff not appearing. These applications were refused ; and thereupon the plaintiff absolutely withdrew from the claim for damages, but not from that for the recovery of the money paid. After that the defendant proceeded to give evidence upon all the issues which had been raised, the plaintiff not appearing. In the result the District Judge dismissed the whole case for default, under s. 102 of the Civil Procedure Code. On appeal to the Chief Court, the majority of the learned judges of that Court held that, the suit having been dismissed under s. 102 of the Civil Procedure Code, no appeal lay, and against that decision the present appeal has been brought. Their Lordships are of opinion that the case should not be allowed to stand as it does now. As to the principal claim of the plaintiff, that relating to the money paid to release the attachment, there was in substance a clear decision of the District Judge adverse to the plaintiff; after which, in substance, no question as to that claim remained open in the Court of first instance. As to the second claim, that for damages, the plaintiff having unconditionally abandoned his claim, there remained nothing in substance to be tried. The case in their Lordships opinion was one not proper to be dealt with under s. 102 of the Civil Procedure Code. Their Lordships are of opinion that it is unnecessary to decide whether an appeal lies against a dismissal regularly made under s. 102, because they think that that section was not applicable to the present case. They think it necessary that the case should go back to the Chief Court to decide the appeal upon its merits. In the course of the argument several minor points were raised which it seems desirable to notice. One was with reference to the evidence already taken in the case, and the use to be made of that evidence. A second point was with reference to the refusal of the First Court to issue a commission. The third was with reference to the refusal of the Court to allow the cross-examination of a learned gentleman who had appeared as counsel in the earlier stages of the case. These are matters upon which it appears undesirable for their Lordships to express any opinion. Such matters can be dealt with by the Chief Court when considering the case on the merits. These are matters upon which it appears undesirable for their Lordships to express any opinion. Such matters can be dealt with by the Chief Court when considering the case on the merits. Their Lordships will humbly advise His Majesty that the decree of the Chief Court should be discharged with costs, and that the case should be remitted to that Court in order that the appeal to that Court may be heard and decided on its merits, and that the costs incurred in the District Court should abide the result of such appeal. The respondents must pay the costs of this appeal.