1. This is an appeal from the decree of the Subordinate Judge of Dindigul confirming in part the decree of the District Munsif of Dindigul. The suit was brought by the plaintiff for a declaration that certain property in the hands of the 1st and 2nd defendants belonged to a debtor of his, Subbaraya Iyer. The 2nd defendant was Subbaraya Aiyar's widow and the 1st defendant was his brother. The suit was brought in consequence of the allowance of a claim petition in favour of the brother, the 1st defendant. Exhibit B is the judgment in O.S. No. 598 of 1917 in which the same plaintiff sued to recover from the widow and the brother certain money due on dealings and promissory notes; The District Munsif in the fourth paragraph of his judgment states as follows: 'By consent 1 strike off the 2nd defendant's name. Plaintiff will pay by consent half of his costs'.
2. The point raised in second appeal is whether the 2nd defendant is in spite of that procedure a party to the suit under Section 47 (Explanation) If he is, the present suit is barred and the proper remedy would be by way of appeal under that section. For the respondent stress has been laid on the form of words used by the learned District Munsif, namely, that the 2nd defendant's name was ' struck off.' It is admittedly a form of words more appropriate to striking off a misjoined plaintiff or defendant than applicable to the case of a party against whom, the plaintiff does not wish to proceed further, as is the fact in the present case. It is well-known that the state of the law was uncertain until the Legislature, enacted the Explanation to Section 47 whereby the Madras view as contained in E. G. Ramaswami Sastrulu v. Kameswaramma 23 M. 361 : 10 M.L.J. 126 : 8 Ind. Dec. 653 was affirmed as against the view of certain other High Courts. In that case it was held that when a party defendant is exonerated from a suit, i.e., the suit is dismissed against him and a decree passed against a co-defendant and in execution of that property belonging to and in possession of the exonerated defendant is attached and sold, the latter is not entitled to maintain a suit, but the question of his claim to and recovery of possession of the property is a question falling under Section 244 now Section 47 of the Code. The case of Gangadhara Ramarao v. Surya Rao 49 Ind. Cas. 835 : 42 M. 219 : 36 M.L.J. 169 : 9 L.W. 329 : 25 M.L.T. 184 shows that the substance of the order and not the form of it is to be regarded. In that case a preliminary objection was taken against the maintainability of the appeal as the learned Subordinate Judge had struck out the name of the 1st defendant under O.1, Rule 10 (2) and removed him from the record. It was contended that that being so no appeal was provided, but Mr. Justice Seshagiri Iyer says: 'In my opinion this is an adjudication determining the rights of the plaintiffs to bring a suit of this nature, and his order is a 'decree' as defined in Section 2 (2), C.P.... Consequently where a substantial claim has been adjudicated upon and where the party's name has been struck out not on the ground that a suit against him would not lie and where a substantial relief claimed in the suit has been ordered to be deleted, Tarn of opinion that the Court has 'conclusively adjudicated the rights of the parties with regard to a matter in controversy' and that, therefore, the order of the Subordinate Judge is a decree.' The important part for the present purpose of the judgment is that we are to regard the substance of the order and not the form. It is quite clear that if the learned District Munsif in the suit of 1917 had said he dismissed the suit as against the 2nd defendant the case would have been perfectly plain, and Section 47 would have applied. The trouble has arisen because he has employed the words 'struck off'. The authoritative case on the subject is Vaddadi Sannamma v. Kobuganti Radhabhayi : AIR1918Mad123 . There the Full Bench held that where a party has been properly impleaded as one of the defendants in the case and it is not contended in the present case that the 2nd defendant was improperly impleaded, the case as against him would have proceeded to judgment but for the fact that the plaintiff elected to abandon part of his case and the suit was in consequence dismissed as against this defendant, he is a defendant against whom a suit has been dismissed within the meaning of the Explanation to Section 47. The learned Chief Justice expressed the opinion that under Order I, Rule 10 (2) the proper course would be for the Court to exercise the power which it now has 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, following the decision in E. G. Ramaswami Sastrulu v. Kameswaramma 23 M. 361 : 10 M.L.J. 126 : 8 Ind. Dec. 653, 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 connection with the suit. Therefore, the opinion of the Full Bench is that striking out under Order I, Rule 10 (2) is the proper procedure to be employed in the case of misjoinder. In any other case the proper course is dismissal. This would appear to be also the opinion of the learned Judges who decided the case reported in Krishnappa Mudaly v. Periaswamy Mudaly 38 Ind. Cas. 297 : 40 M. 964 : 21 M.L.T. 121 : 5 L.W. 369 : 32 M.L.J. 532 that where a party sets up a paramount title in a mortgage suit to both the mortgagor and the mortgagee and has been exonerated from the suit on the ground of misjoinder, he does not remain a party to the suit for the purpose of Section 47.
3. The lower Courts here have dealt with this question in what may be described as a perfunctory manner. The issue is distinctly raised as No. 6 in the suit. The learned District Munsif. says: 'As stated in the latter Full Bench ruling Vaddadi Sannamma v. Koduganti Radhabhayi : AIR1918Mad123 the 1st defendant's name should be deemed to have been struck off from the record though erroneously retained in the cause title in the decree and as such the 1st defendant cannot be said under Section 47 to be a person against whom a suit has been dismissed.' This opinion has not been attempted to be supported by the learned Counsel for the respondent and it is, in my opinion, an entire misreading of the result of the Full Bench case in Vaddadi Sannamma v. Koduganti, Radhabhayi : AIR1918Mad123 . It does, however, furnish one possibly useful item, and that is, that in spite of the 2nd defendant's name being struck off, his name was retained in the cause title in the decree that was finally drawn up so that if, as insisted by the learned Counsel for the respondent, one is to insist on the importance of the form, this would seem to show that the 2nd defendant's name had in fact not been struck off. The learned Subordinate Judge deals with the point in an even more perfunctory manner. He says: 'The failure to strike off his name is not a ground for holding that he is still a party to the suit', referring to the alleged mistake of continuing the 1st defendant's name in the cause title of the decree. In my opinion, following the Full Bench ruling in Vaddadi Sannamma v. Coduganti Radhabhai : AIR1918Mad123 there can be other conclusion than that what the learned District Munsif really led in the original suit was to dismiss it as against the 2nd defendant. By an unhappily or mistaken use of language he used the expression ' strike off ' in the judgment which is I think appropriate only to the case of misjoinder of parties, or causes of action. I, therefore, am of opinion that the suit is incompetent throughout. The second appeal must be allowed and the suit dismissed with costs throughout. The memorandum of objections is dismissed without costs.
Viswanatha Sastri, J.
4. I fully agree with what has fallen from my learned brother and have nothing to add.