P. Chandra Reddy, C.J.
1. This civil miscellaneous second appeal has been placed before a Bench by our learned brother Bhimasankaram J. as, in his opinion, it involved two questions of law, namely (1) as to the interpretation of Section 47 C. P. C. and (2) as to the effect of an attachment on a partition suit subsequently filed.
2. The short facts of the case leading up to these questions are these. The first respondent, an endorsee of a promissory note made by a Hindu father obtained a decree on the foot of that note in O. S. No. 54 of 1937 (D. M. C. Eluru) against him. Originally, he imnleaded the sons, who are the appellants before us, as well as the grandsons of the maker of the note as defendants 2 to 5.
But before the decree was passed, he gave them up with the result that the suit was dismissed against them and judgment was entered only against the father, the first defendant, on 24-1-1938. In execution of that decree, the first respondent attached the family property in dispute and ultimately brought it to sale. Pending the attachment, the sons, i.e., the appellants before us, had filed a suit for partition and obtained a decree on 16-9-1950. However, the execution proceedings continued and the property was sold and purchased by the second respondent.
3. The present appellants filed an application (E. A. No. 554 of 1950 in Subordinate Judge's Court Eluru) objecting to the order for sale of the property on the ground that they had a two-third share in the property attached and consequently the first respondent, who had obtained a decree only against the father, could not proceed against their interest in the property. As subsequent to the application the property was actually purchased by the second respondent, by a petition filed under Section 47 C. P. C. the prayer was amended by inserting in the application the relief for a declaration that they were entitled to a two-third share. To this petition the auction-purchaser was implicated as the second respondent.
The respondents raised a plea relating to the maintainability of the petition but this was overruled and the matter was decided on the merits. It was held by the trial Court as well as the lower appellate Court that the partition, having been effected subsequent to the attachment, was ineffectual against the execution proceedings and it was, therefore, open to the first respondent to bring the property to sale. In the result, the petition was dismissed by the Courts below.
4. In the appeal brought by the aggrieved party (the appellants), the objection as to the maintainability of the petition was again raised by the learned counsel for the respondents. The learned Judge seems to have been of the view that Section 47 C. P. C. governs the petition and has proceeded to consider the effect of the attachment on the partition suit that was subsequently filed. It is not necessary for us to consider the second question posed by the learned Judge in the view we take on the first point. The answer to the first question turns upon the construction to be placed on Section 47 C. P. C.
5. Section 47 C. P. C., in so far as it is material for the purpose of this enquiry, is as follows:
'All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.''
We have now to determine the meaning to be attributable to the words 'parties to the suit in which the decree was passed.' The exact scope and ambit of this expression has been the subject of several judicial considerations. There are three Full Bench rulings of the Madras High Court on this subject the latest of them being the ruling in China Ramayya v. Venkamraju, : AIR1954Mad864 (FB) (A).
In similar circumstances, Subba Rao, J. (as he then was) who delivered the opinion of the Full Bench, took the view that when a suit was dismiss--ed against a defendant on the ground that he was not a necessary or a proper party in a suit against the father on a promissory note executed by him, such a defendant could not be deemed to be a party within the purview of Section 47 C. P. C. There, the suit was laid in identical circumstances. It was based upon promissory note executed by the father but to that suit were impleaded the sons also. The suit was decreed against one of the sons also.
A point was taken in the appellate Court that since the action was laid on a promissory note, the members of the family other than those who executed the promissory note, could not be made liable in such an action. This contention was accepted by the lower appellate Court and the suit was dismissed against the son. Notwithstanding the fact that it was only in appeal that the suit was dismissed against the son, it was considered that he was not a party within the mischief of Section 47 C. P. C.
The learned Judges followed tan earlier Full Bench decsion of the same Court in Abdul Sac v. Sundara Mudaliar. ILR 54 Mad 81: (AIR 1930 Mad 817) (FB) (B). That was a suit to enforce a mortgage. One of the defendants to the suit pleaded by written statement that since he had not derived any title from the mortgagor but independently of him, the suit should be dismissed against him. This objection weighed with the Court and the suit was dismissed as against him.
The plaintiff, who got a decree on the mortgage, evicted the defendant in execution. That defendant successfully applied to the executing Court to put him in possession. When the matter came up before the Full Bench, it was laid down that since the defendant was wrongly impleaded as a party, he was not a party to the suit within the meaning of Section 47 C. P. C. It was remarked that the proper procedure in such a situation was to strike, out his name from the record under Order 8, Rule 10 C. P. C and not merely to dismiss it as against him.
6. Mr. Rama Rao, for the appellants cites to us another decision of a Full Bench of the same Court in Sannamma v. Radhabhayi, ILR 41 Mad 418: (AIR 1918 Mad 123) (FB) (G). We do not think that case in any way helps the appellants. On the other hand, some of the observations made therein tend to destroy the argument put forward on, behalf of the appellants, The headnote which correctly represents the decision of the case, is in these words:
'Where a person has been properly impleaded as one of the defendants in a suit but the suit is dismissed as against him on account of the plaintiffs election to abandon his case so far as it affected that defendant, such a person is a 'defendant against whom a suit has been dismissed' within Section 47 Civil Procedure Code.'
It is manifest that their Lordships were contemplating a case where the person impleaded was a proper party. That it would not apply to a case where the defendant was not a proper party, is clear from the following passage at p. 424 (of ILR Mad): (at p. 125 of AIR) of the report.
'The case which came before the Court in Krishnappa v. Periyaswamy, ILR 40 Mad 964 : (AIR 1918 Mad 911) (D) of a misjoinder of causes of fiction and the plaintiff being required to proceed with one cause of action only and the suit being dismissed as against the defendants who had been joined in respect of the other causes of action only, may possibly stand on a different footing, as to hold that the cause of action which the Court was prohibited from trying may be gone into in execution by virtue of Section 47, goes far to defeat the prohibition of joinder, and such a construction of Section 47 should therefore be avoided if it is possible to do so.
As that question is not before us, I express no opinion upon it, and will only say that the proper course in these cases appears to be for the Court to exercise the power, which it now has under Order I, Rule 10 (2), of ordering at any stage of the proceedings, the name of a defendant improperly joined to be struck out, instead of dismissing the suit against him. That will, as held by the Full Bench in Ramaswami Sastrulu v. Kameswaramma. ILR 23 Mad 361 (FB) (E) have the effect of taking him out of the operation of Section 47 which ought not to apply to him seeing that he has no real concern with the suit.'
It is evident that this Full Bench ruling is not in any way inconsistent with the subsequent Full Bench decisions. That being the case it does not assist the appellant in any way. In a suit by an endorsee of the promissory note executed by the father alone no decree could be obtained against the sons and relief could be obtained only against the executant of the note.
So it may be properly said that the sons had no concern with the suit. In other words, they were not proper parties to the suit, The expression 'party occurring in Section 47, C. P. C., can only mean a 'proper party' and the Section cannot apply to a person who was improperly impleaded in a suit. Hence the operation of Section 47, C. P. C., cannot, be invoked in such a case.
7. It is urged by Sri Rama Rao that since the Court has not dismissed the suit on the ground that they were not necessary parties, it would not come within the doctrine of any of the pronouncements referred to above. We find it difficult to accede to this proposition. There can be little doubt in this case that the plaintiff (in O. S. No. 54 of 1937) withdrew the claim as against the sons (the appellants herein) only for the reason that it was unsustainable against them as appears from the fact that an endorsement was made on the plaint itself before the trial proceeded to a final stage.
This is also supported by the fact that costs were awarded to the sons who were exonerated from the suit. The fact that instead of the Court stating that the suit is dismissed against a person for the reason that he is not a proper party the plaintiff himself has realised the untenability of the claim against him, and withdraw it before the final disposal of the suit does not make any difference. It follows that the principle laid down in : AIR1954Mad864 (FB) (A), applies to a case where the plaintiff, being advised that no claim could be sustained against the sons, when it is based on a promissory note executed by the father alone, gives them up. Since the appeal itself is before us, it is unnecessary to send it back.
8. Having regard to the view we have taken, Mr. Rama Rao suggests that it is not necessary for us to go into the other question. We are in agreement with him and do not propose to answer the second point as it is unnecessary in the present context as already mentioned.
9. In the result, the appeal is dismissed withcosts of the first respondent.