JUDGMENT 1. We are invited in this Rule to set aside a decree by which a Court of Small Causes has dismissed a suit without trial on the merits. It appears that Gopi Lal, one of the Petitioners before us, instituted a suit on the 25th June 1910 for recovery of money due on a promissory note. He was examined in support of his claim and stated that he was a member of a joint family; the learned Judge held that the other members ought to join as Plaintiffs. Gopi Lal then asked for leave to withdraw from the suit with liberty to bring a fresh suit on the same cause of action, whereupon the following order was recorded :- " The Plaintiff be permitted to withdraw from the suit with leave to bring a fresh suit subject to limitation and on condition that he must pay or deposit the Defendant's costs before bringing a fresh suit or else this suit shall stand dismissed with costs." On the 25th July 1910, the suit was accordingly withdrawn. Three days later, Gopi Lal with two other persons, Mewa Lal. and Shumraj Singh, the Petitioners before us, instituted the present suit. The costs of the previous suit, however, were not deposited along with the plaint, but were put into Court on the 23rd August 1910. The Defendant objected that the order of the Court has not been carried out and that the suit could not be maintained. The Small Cause Court Judge gave effect to this objection and dismissed the suit. In our opinion, the order of the Small Cause Court Judge is open to objection on more than one ground. In the first place, it is clear that so far as Mewa Lal and Shumraj are concerned, they are not bound by the previous order. If, therefore, we assume that Gopi Lal has not carried out the order of the Court and the suit is liable to be dismissed in so far as he is concerned, it must be tried out in so far as Mewa Lal and Shumraj claim to recover money from the Defendant; and these Plaintiffs are clearly entitled to ask that Gopi Lal should be joined as a party Defendant to the suit. In this view, the suit could not possibly be dismissed. 2. In this view, the suit could not possibly be dismissed. 2. In the second place it is clear that the plaint may very well be treated as filed on the 23rd August 1910. It has been pointed out to us that no question of limitation arises whether the suit is taken as instituted on the 23rd August or the 25th July. Under these circumstances, there is no reason why as regards all the Plaintiffs the suit should not be taken to have been duly instituted on the day on which the costs were deposited. In support of this view reference may be made to the decision of this Court in Jeun Muchi. Budhitam I. L. R. 32 Cal. 339 (1904). 3. In the third place, it is clear upon the authority of the decision of this Court in the case of Abdul Aziz v. Ebrahim I. L. R. 31 Cal; 965 (1904) that the deposit of the costs on the 23rd August 1910 ought to be treated as sufficient compliance with the order made in the previous suit. Our attention, however, has been invited to the case of Harenath v. Syed Hossein 10 C. W. N. 8 (1905). and it has been argued that the principle which underlies that decision cannot be reconciled with the ruling in Abdul Aziz v. Ebrahim I. L. R. 31 Cal; 965 (1904) In our opinion the case of Harenath v. Syed Hossein 10 C. W. N. 8 (1905) is plainly distinguishable. There the Court fixed the time for payment of costs upon the expiry of which the suit was to stand dismissed in the event of default. The Plaintiff did not deposit the costs within that time with the result that the suit stood automatically dismissed. Consequently when the second suit was instituted there was a bar to the trial of the claim of the Plaintiff who did not make any attempt even then to carry out the order of the Court or to ask for any extension of time. 4. The result, therefore, is that this Rule is made absolute and the order of the Court below set aside. The suit will be remitted for trial on the merits. The Petitioners are entitled to their costs of this Rule. We assess the hearing fee at one gold mohur. The costs of the Court below will abide the result. 4. The result, therefore, is that this Rule is made absolute and the order of the Court below set aside. The suit will be remitted for trial on the merits. The Petitioners are entitled to their costs of this Rule. We assess the hearing fee at one gold mohur. The costs of the Court below will abide the result. The same order will govern Rule No. 4650 of 1910, which is also made absolute with costs, one gold mohur.