1. This is an appeal against the order by the learned Additional Subordinate Judge of Guntur remanding E. A. No. 331 of 1948 for fresh disposal by the District Munsif of Narasaraopet.
2. The appellant is a widow one Mahalakshmamma who was impleaded as defendant 2 in a suit filed by the respondent decree-holder on a pronote executed by her deceased father-in-law Ramakotayya, whose widow was impleaded as defendant 1. In the suit, the appellant was exonerated, with costs, by the learned District Mun-sif and the decree-holder obtained a decree against the assets of Ramakotayya in the hands of his widow. In execution he attached immoveable property to which the appellant laid claim in a petition under Order 21, Rule 58 and Sections 47 and 151, Civil P. C. She claimed the attached property as being her own by virtue of a purchase in execution of decree which she obtained against her own father-in-law, who had, it was alleged, taken possession of valuable moveable property belonging to her, while she was a ward of Court, and furnished security for a substantial amount. The learned District Munsif held that the appellant had prima facie title and possession and allowed her claim petition. In appeal, the learned Subordinate Judge taking the view that she was a party to the suit the decree of which was under execution remanded the claim petition for disposal on its merits under Section 47, Civil P. C. negativing the view of the District Munsif that the decree-holder's remedy was in this case by way of a separate suit to set aside the summary order on the claim petition.
3. I have no doubt that the view taken by the learned District Munsif is correct. There were two views taken in decisions of this Court as regards the application of the explanation to Section 47, Civil P. C. according to which, for the purpose of that section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed are parties to the suit. The earlier narrow view taken in -- 'Sethu Konar v. Ramaswami Konar', AIR 1926 Mad 484 (A), was that the ground on which a party is exonerated from the suit can never determine whether he continues or ceases to be a party, but it will depend entirely upon whether his name has been struck off from or retained on the record. This view was negatived by a Full Bench decision in -- 'Abdul Sac v. Sundara 'Mudaliar', AIR 1930 Mad 817 (B), which followed the earlier view taken in -- 'Krishnappa v. Periasami', AIR 1918 Mad 911 (C), by Ayling and Kumaraswami Sastriar JJ. The learned subordinate Judge considered the decision in -- AIR 1930 Mad 817 (B)', but took the view that it did not apply to the facts of the present case, as there it was a case of a party claiming a title paramount in a mortgage suit. The learned Subordinate Judge failed to observe that this was a case where the appellant claimed a paramount title to this property as against the deceased executant of the pronote in which the decree-holder obtained his decree. The Full Bench decision is clearly in point and governs the present case. The view taken there was also followed in -- 'Jujisti Panda v. Lakshmana', AIR 1833 Mad 435 (D) and -- 'Thanagachami v. Veerappa', AIR 1937 Mad 268 (E). In -- AIR 1933 Mad 435 (D), Beasley C. J. who also delivered the judgment of the Full Bench in -- 'AIR 1930 Mad 817 (B)', expressed the view that 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 and that such defendants must be treated as persons who had been dismissed from the suit and not as person against whom the suit had been dismissed. This view was also followed in : AIR1937Mad268 ', in which it was held that a defendant who was not a necessary party would not be a party to the suit within the meaning of Section 47, if he is exonerated without his claim being adjudicated upon. There can be no doubt following this line of decisions that this is a case which is not governed by Section 47, Civil P. C. but by Order 21, Rule 58.
4. There is a further aspect of Section 47 which requires two conditions to be satisfied in order to bring applications in execution within its scope. The first condition is that it must be a question arising between the parties to the suit in which the decree was passed. The second condition is that it must relate to the execution, discharge or satisfaction of the decree. The word 'and' in this connection in Section 47(1) appears to me to be highly significant. In the present case, the question raised as between the plaintiff decree-holder and the present appellant could not have been adjudicated upon ia the suit on the pronote. I entirely fail to see how an issue as between the parties which could not in any event have been decided in the suit itself and does not arise between the parties can be decided in execution proceeding by way of an application under Section 47, Civil P. C. This is an aspect of Section 47, Civil P. C. which has not been specifically adverted to in the decisions to which I have been referred. It would be opening an avenue of abuse if a plaintiff were to include as defendants in a suit, quite improperly, persons who are really unnecessary and while not being able to have any issues decided as between him and them in the suit itself, be permitted to pursue remedies against them in execution under Section 47, Civil P. C. and have them determined without the payment of any court-fee. No doubt, it is always open to the executing Court to treat any proceedings under Section 47 as a suit and, if necessary, order payment of any additional court-fee. In this case, however, it is of considerable importance as to who should be the plaintiff in the suit to be filed whether it is the appellant whose property has been attached, or whether it should be the decree-holder, who has 'prima facie' failed to show that the property attached belonged to his original debtor. I have no hesitation on the facts of this case, in restoring the order of the learned District Munsif and referring the decree-holder to a suit, if so advised. The appeal is allowed with costs throughout. Leave refused.