1. This is a Letters Patent appeal from a judgment of Wallace, J. in second appeal. At that stage for the first time it was contended that the suit was barred by Section 47, Civil P.C. It was objected that plea ought not to be allowed to be raised at that stage, but Wallace, J., held that it was a matter of law affecting the validity of the suit and that it was a point of jurisdiction that had to be decided and he accordingly allowed that plea to be raised. In the original mortgage suit defendants 2 to 4 were parties and the plaintiff's claim against them was on the footing of their being in possession of the suit property. They raised the defence setting up title in themselves adversely both to the mortgagors and the mortgagee. Thereupon the plaintiff exonerated them and gave up the suit against them and having done this he proceeded to enter into a compromise with the mortgagors. All these facts are set out in para. 10 of the learned District Munsif's judgment. The decree in that suit is Ex. E-3 and it states:
This case coming on for hearing this day in the presence of the plaintiff and of defendant 1 and guardian of defendant 2 in person, defendants 3 and 6, being ex parte, have agreed to compromise the matter of the suit and that they have put into Court a deed of compromise, M.P. No. 984 of 1917, praying that this Court will pass a decree in accordance with the terms thereof, this Court in pursuance of the said deed of compromise defendants 4, 5, and 7 having been dismissed from the suit doth order, etc.
2. The decree clearly shows that before the compromise was agreed upon, these defendants had been dismissed from the suit. They were dismissed from the suit because the suit could not possibly succeed against them: and in view of the defence raised by them, they were not proper parties to the suit. That being so, the position is exactly the position dealt with by a Pull Bench of this Court of which I was a member in Abdul Sac v. Sundara Mudaliar AIR 1930 Mad 817. It is to be observed that this decision was subsequent to the decision in second appeal by Wallace, J., and had this case been then decided, there is no doubt that his decision would have been the other way. It is quite clear that, where parties have been wrongly joined and the suit against them is given up by the plaintiff or upon that ground he exonerates them, or there is a finding come to that they have been wrongly joined, then the correct procedure is to strike out their names as having been improperly impleaded. On the exoneration or the striking out of the names of persons on the ground of misjoinder, they cease to be parties to the suit. That is quite clear from the judgment of the Pull Bench. In this case the learned District Munsif has adopted the correct procedure. He clearly by the decree is shown to have treated these defendants as persons who had been dismissed from the suit and not as persons against whom the suit had been dismissed. From the time of their dismissal they ceased to be parties to the suit because they had been wrongly joined. If that is so, Wallace, J., was wrong in following the decision in Sethu Konar v. Ramasami Konar AIR 1926 Mad 484, a case which has been dealt with and explained in the Pull Bench decision. That being so, these defendants were no longer parties to the suit and it follows therefore that this Letters Patent appeal must be allowed with costs throughout and the decree of the District Munsif restored with costs.
3. I agree