1. We are. of opinion that when a party defendant in a suit is exonerated from such suit--the suit being dismissed against him and a decree passed agaiast a co-defendant in the suit--and in execution of thai decree property belonging to, and in the possession of, the defendant who was so exonerated from the suit is attached and sold, the latter is not entitled to maintain a suit for recovery of possession of the, property and that the question of his claim to, and to recover possession of, the property is a question foiling within Section 244. Civil procedure Code of 1882, so as to debar him from maintaining such suit.
2. It was contended before us that a defendant in whose favour the suit is dismissed is not a party to the suit within the meaning of the section, because there is no decree which can be executed against him and that the words ' parties to the suit ' in the section must be limited to the judgment-creditors and judgment-debtors, because they are the only persons between whom questions could arise ' relating to the execution, discharge or satisfaction of the decree or to the stay of execution thereof.' We do not think this is a correct view of the section.
3. We do not think that the words ' parties to the suit ' can be limited in the way suggested. The Privy Council have more than once pointed out that a narrow construction should not be placed on the words of this section--the object of the enactment being to check needless litigation:
4. The view we hold is in accordance with the decision in Sankarawhdivammal v. Kumarasamya (1870) 6 M.H.C.R. (which was apparently not brought to the attention of the Judges making the reference) and which has been approved in Gowri v. Vigneshvar and the same view of the law was expressed in Vibhudapriya Thirtha-sami v. Vidianidhi Thirthasami.
5. The decision in Gadicherla Chinna Sitayya v. Gadicherla Sitayya which was cited as being in conflict with this view, is not so in reality, The report of the case is not clear, but on reference to the records it appears that the names of the defend-ants exonerated were in fact removed from the suit and they had thereby ceased to be parties to the suit.
6. If the decision in Nagamuthu v. Savarimuthu 5 can be held to support the respondent's contention--a point which is by no means clear--we are unable to agree with it for the reasons above given.
7. This Second Appeal coming on this day for hearing after the receipt of the Full Bench decision before their Lordships Mr. Justice Subrahmania Aiyar and Mr. justice Davies, the Court delivered the following final.
8. According to the full Bench ruling, this suit will be dismissed with costs throught with reference to item 5 is plaint Schedule A, and in regard to items 6 and 7 in that schedule the appeal will be dismissed with the proportionate costs.