Judgment 1. In the suit out of which this appeal arises the plaintiffs alleged that on the 27th June, 1900, the defendants 3rd party had mortgaged the disputed land in favour of the defendants 2nd party, who made an assignment of the mortgage on the 21st May, 1925, in favour of Kauleshwar Kuer and Rajbansi Kuer by a deed of assignment. On the 29th June, 1943, defendants 3rd party redeemed the mortgage, and on the 18th December, 1944, defendants 3rd party sold the Hind to the plaintiffs. A suit was brought by Nanhakchand, ancestor of the plaintiffs, in the year 1940, against defendants 1st party, on the ground that they were in possession as trespassers after the redemption of the mortgage. The suit was dismissed on the 13th May, 1947. An application was made by Nanhakchand under Order 9, Rule 9, Code of Civil Procedure, but that was also dismissed. There was a civil revision application filed before the High Court aginst the order of the trial court dismissing the application under Order 9, Rule 9, Code of Civil Procedure, but the civil revision application was also dismissed by the High Court on the 3rd December, 1948. It appears that Nanhakchand died in January, 1952, and on the 7th June, 1952, there was commutation of rent made by the Commutation Officer on the application of the defendants 1st party with regard to the disputed land. The present suit has been instituted by the sons and widow of Nanhak-chand and the reliefs claimed are, firstly, a Drayer for recovery of possession of the disputed piece of land and, secondly, a prayer for a declaration thaf the order of the Rent Commutation Officer commuting the rent of the holding on the application of the defendants 1st party was ultra vires and without jurisdiction. The trial court gave a decree in favour of the plaintiffs with regard to the declaration regarding the invalidity of the order of commutation of rent, but with respect to the prayer for recovery of possession the trial court held that the claim was barred under the provisions of Order 9, Rule 9, Code of Civil Procedure. The plaintiffs made an appeal before the lower appellate court which reversed the decree of the Munsif and gave the plaintiffs the relief with regard to recovery of possession of the land and ejectment of the defendants 1st party therefrom. 2. The plaintiffs made an appeal before the lower appellate court which reversed the decree of the Munsif and gave the plaintiffs the relief with regard to recovery of possession of the land and ejectment of the defendants 1st party therefrom. 2. The main question presented for determination in the present appeal is as to whether the claim of the plaintiffs with regard to the ejectment of the defendants 1st party from the disputed land is barred under the provisions of Order 9, Rule 9, Code of Civil Procedure, which runs as follows : "9. (1) Where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for 1m non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit. (2) No order shall be made under this rule unless notice of the application has been served on the opposite party." The contention put forward on behalf of the appellants is that the present suit is barred because of this statutory provision, and the bar applies not only to the plaintiffs but also to their heirs and legal representatives, In support of this argument reference was made by learned counsel for the appellants to a decision of the Andhra Pradesh High Court of Balaji Govinda Narain V/s. Hiralal, AIR 1957 Andh Pra 364 and also to a decision of the Calcutta High Court in an unreported case Suraj Ratan Thirani V/s. Azamabad Tea Co. Ltd., AIR 1955 NUC Cal 2867, where it was held that the bar of Order 9, Rule 9, Code of Civil Procedure, applies to the heirs and assigns of the plaintiff and it was almost axiomatic that, where the plaintiff was barred, his heirs and assigns were equally barred. In our opinion the argument put forward on behalf of the appellants is well founded and must be accepted as correct. It is true that Order 9, Rule. In our opinion the argument put forward on behalf of the appellants is well founded and must be accepted as correct. It is true that Order 9, Rule. 9, states that "where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action". But the rule goes on to say that "he may apply for an order to set the dismissal aside, and if he satisfies the court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit". It is true that Order 9, Rule 9, does not expressly refer to plaintiffs heirs or assigns, but the language of Older 9, Rule 9, must be read in the context of Sec.146 of the Code of Civil Procedure, which states as follows : "146. Save as otherwise provided by this Code or by any law for the time being in force, where any proceeding may be taken or application made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him". It is clear, therefore, that by virtue of Sec.146 it is open to a person deriving title through the plaintiff to apply under Order 9, Rule 9, to set aside an order passed under Order 9, Rule 8, Code of Civil Procedure. If it is open to an heir or assign or legal representative of a plaintiff to make an application under the provisions of Order 9, Rule 9, to set aside an order of dismissal, there is no reason why the disability which attaches to a plaintiff under this rule should not also apply to persons claiming through a plaintiff against whom an order under Rule 8 dismissing the suit was passed. In our opinion the disability which is imposed upon the plaintiff under Order 9, Rule 9, also attaches to the person claiming through the plaintiff, and if such an intepretation is not placed upon the language of Order 9, Rule 9, there is plenty of scope for evading and circumventing the provision of rule by a plaintiff who may make an assignment after an order dismissing his suit has been passed under Rule 8. This view is supported by the decision of the Andhra Pradesh High Court in AIR 1957 Andh Pra 364 and also by the unreported decision ot the Calcutta High Court in AIR 1955 NUC (Cal) 2867 to which we have already made a reference. On behalf of the respondents learned counsel referred to the decision of the Patna High Court in Gopi Ram V/s. Jagarnath Singh, AIR 1929 Pat 685 where there is an obiter dictum of Das, J. that the word "plaintiff" in Order 9, Rule 9, cannot be construed to include persons claiming through the plaintiff. For the reasons we have already given we hold that this obiter dictum does not correctly express the law on the point. On the contrary there is a decision of the Calcutta High Court in Ganoda Prasad Roy V/s. Shib Narain Mukerjee, ILR 29 Cal 33, which deals with the interpretation of Sec.108 of the old Code of Civil Procedure, corresponding to Order 9, Rule 13, of the present Code of Civil Procedure, but which supports the interpretation that we have expressed as regards Order 9, Rule 9 of the present Code of Civil Procedure. It was held in the Calcutta case by Maclean, C. J. and Banerjee, J. that where a defendant against whom a decree has been passed ex parte dies, his legal representative is competent to apply under Sec.108, Code of Civil Procedure, for an order to get aside the ex parte decree. The legal position may also be tested by reference to the interpretation of other provisions of similar character, namely, Order 2, Rule 2, and Order 23, Rule 1. Order 2, Rule 2 runs as follows: "2. (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. Order 2, Rule 2 runs as follows: "2. (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. (2) Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished, (3) A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, ho shall not afterwards sue for any relief so omitted". Order 23, Rule 1 provides: "1. (1) At any time after the institution of a suit the" plaintiff may as against all. or any of the defendants, withdraw his suit or abandon part of his claim. (2) Where the Court is satisfied - (a) that a suit must fail by reason of some formal defect, or (b) that there" are other sufficient grounds, for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terras as it thinks fit, grant the plaintiff permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of a claim. (3) Where the plaintiff withdraws from a suit, or abandons part of a claim, without the permission referred to in Sub-rule (2), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim ....." With regard to Order 2, Rule 2, it has been held in a very early case, Sooruj Pershad Tewary V/s. Saheb Lal Tewary, 3 Suth WR 25, that a suit by an heir on the same cause of action on which a suit was previously brought by his father, though for property different from that which was the subject-matter of that suit, was barred by Section 7 of Act VIII of 1859, which corresponds to Order 2, Rule 2 of the present Code of Civil Procedure. With regard to Order 23, Rule 1, it is obvious that the expression "plaintiff" in this rule must include the heirs and legal representatives of the plaintiff, and, therefore, once the plaintiff withdraws from the suit or abandons part of his claim without the permission referred to in sub-rule (2), the plaintiff as also his heirs and legal representatives will be precluded from instituting a fresh suit in respect of such subject-matter or such part of the claim. In view of all these considerations we are of opinion that the bar imposed upon the plaintiff under the provisions of Order 9, Rule 9, Code of Civil Procedure, includes not only the plaintiff but also persons claiming through him, and, therefore, the present suit is barred with respect to the claim for recovery of possession of the disputed land. It follows, therefore, that the view taken by the lower appellate court is erroneous and the decree of the lower appellate court must be set aside and; the decree given by the trial Court must be restored. We accordingly allow this appeal, set aside the decree of the lower appellate court and restore the decree granted by the trial court. We order that the parties will bear their costs throughout.