1. This is a defendant's appeal against a decree and order of the Subordinate Judge of Meerut, confirming the decision of the trial Court. The plaintiff sued for a declaration that certain property was his property and not attachable in execution of a decree in the following circumstances : The appellant had sued in the Small Cause Court to recover some money from two persons on the basis of a bond, and the present plaintiff-respondent was joined as a third defendant on the ground that there had been a partition between him and the appellant and that the bond had fallen to the share of the appellant. The suit was duly decreed in the Small Cause Court, the present plaintiff-respondent Shambhu Dayal being described as a pro forma defendant. Subsequently the decree-holder, that is the present appellant, attached the property which is now in dispute in execution of the decree, and the plaintiff-respondent made an objection in the executing Court to the effect that the property was not attachable, but was his. The objection was dismissed, and the plaintiff-respondent then came to the Court of the Munsif with the present suit for a declaration and obtained a decree in both Courts. The defence was taken, and it is now argued in second appeal, that as the plaintiff-respondent was a party to the suit in which the decree under execution was passed, his objection could be heard only under Section 47, Civil P.C., and could not form the subject matter of a separate suit. There is no doubt that Shambhu Dayal appears in the array of parties in the Small Cause Court suit, but it is argued that he was not really a 'party' though he has been called a pro forma defendant and that Section 47 will not apply to him at all.
2. This argument has been pressed at great length by Mr. Pathak, and a number of decisions have been cited, in which it has been held that a person who was formally in the array of parties, but against whom no relief either was or could be claimed was not properly speaking a 'party' to the suit, so that Section 47, Civil P.C., could not be applied to him. It has also been pointed out that there is no definition in the Code, of the expression 'pro forma party,' though it is loosely used, and that a 'party' properly speaking as referred to in Rules 1 and 3, Order 1, is a person who either seeks a relief or against whom a relief is sought. Rule 10 of the same Order further provides that the Court may strike out a party unnecessarily joined, and may add the name of a person who is present before the Court as necessary to enable the Court to settle all the questions involved in the suit. It is argued that from this point of view Shambhu Dayal was not a 'party' because no relief was sought against him and that his name was not added at the instance of the Court in order to enable it to settle all the questions involved. Among the decisions quoted by Mr. Pathak to support his plea are the following : Rahimbhoy Habibbhoy v. Charles Agnew Turner (1893) 17 Bom. 341 and Abdul Sac v. Sundara Mudaliar A.I.R. 1930 Mad. 817. In this latter case the question was whether Section 47 would apply in the case of a defendant who had been wrongly impleaded, and the Court instead of striking out his name from the record had dismissed the suit against him, it was held that the mere fact that the Court had dismissed the suit against him instead of striking out his name (with the result that his name appeared as one of the judgment-debtors in the decree) did not have the effect of making him a 'party' within the meaning of Section 47, Civil P.C. Several other decisions have been quoted with the object of showing that a person against whom no relief is sought and no relief is given by the Court, is not properly speaking a 'party' to the suit, even though his name may appear in the decree as a pro forma defendant. These cases however appear to me to be irrelevant, since it has been pointed out that the plaint does envisage a relief against Shambhu Dayal, though it is not the payment of the money claimed against the contesting defendant. I have given the circumstances above, and it is stated in the plaint that the object of joining Shambhu Dayal was that the decision might bind him and it might be clearly established that he has no claim to the amount due under the bond on which the plaintiff-respondent was suing. In these circumstances, it is quite impossible to hold that Shambhu Dayal's name should have been struck off from the record, that he should not have been impleaded, and that he was not properly speaking a 'party' to the suit.
3. It was suggested that the Court might treat the present suit as an application under Section 47, but though in certain circumstances such a course might be possible, it is clear that in the present case it was not. The decree was given by the Small Cause Court and the proceedings in execution were taken in the same Court, and the objection of the present plaintiff-respondent was also filed in that Court. The application of the plaintiff-respondent in the Small Cause Court was headed as one under Order 21, Rule 58, and it was dealt with by the Court as such. The decision was therefore final under Order 21, Rule 63, Civil P.C., and unless the whole of the proceedings be held to be incompetent, it was binding between the parties unless the plaintiff-respondent was in a position to have the decision set aside by a decree in a regular suit. If an application under Section 47, Civil P.C., is the proper means of establishing the plaintiff's right it could only be made in execution proceedings in the Court of the Judge of Small Causes and not in the Court of the Munsif. The Munsif therefore could not treat the present suit as an application under Section 47. It has also been suggested that the present appellant is estopped from raising the objection that the proceedings should be under Section 47, and not by a regular suit. There is however nothing to show that any action of the appellant induced the respondent to make his application under Order 21, Rule 58 in the executing Court rather than under Section 47. I have been referred to the case of U Kala v. Ma Hnin U A.I.R. 1927 Rangoon 137 in support of the respondent's plea of estoppel, and in that case the Bench held that where the plaintiff had acquiesced in the proceedings under the provisions of Order 21, Rule 58, he could; not contend that Rule 63 did not apply and that the case came under Section 47, Civil P.C. If the meaning of the Bench is that the plaintiff from the mere fact of not having raised the legal plea that the proceedings ought to be under Section 47, and not under Order 21, Rule 58, is estopped from pleading that in defence in a regular suit, I must say that with all respect to the learned Judges of the Bench, I cannot agree. The objection having been filed under Order 21, Rule 58 and the proceedings having been taken by the Court in that form, the plaintiff merely followed the lead of the other side and the directions of the Court and cannot be said to have intentionally caused or permitted' the appellant to believe that the proceedings ought to be taken under Order 21, Rule 58 and to act in that belief. The result is that I allow the appeal, set aside the decree and order of the lower appellate Court and direct that the plaintiff's suit be dismissed with costs in all Courts. The cross objection filed on behalf of the respondent has now no effect and is also dismissed. Mr. Pathak has asked for leave to appeal under the Letters Patent, and as there are one or two points in the case on which authority is doubtful, this Is allowed.