Nallaperumal Pillai vs Sakul Hamed Maracayar and Others

Srinivasa Aiyangar, J.—The main ground argued in this second appeal on behalf of the appellant who is the 1st defendant in the suit from

which this second appeal has arisen is that the lower courts were wrong in holding that the plaintiff''s suit was not barred by the provisions of

Section 47 of the Procedure Code. For the purpose of making good an objection on the footing of that section it is necessary to make out two

matters : first, that the person who comes in as plaintiff in the subsequent suit was a party to the suit in which the decree was passed within the

meaning of Section 47 of the Code and secondly, that the subject-matter of the suit was one relating to the execution, discharge or satisfaction of

the decree in the previous suit. Mr. K. V. Sesha Aiyangar, the learned vakil for the appellant, wished to argue both the positions, namely, that the

plaintiff in this suit must in law be regarded as having been a party to the previous suit within the meaning of Section 47 of the Code and also that

the subject-matter of the present suit is one relating to the execution, discharge or satisfaction of the decree in the previous suit. We intimated to

him that he might for the purpose of this argument take it that the present plaintiff was a party to the previous suit within the meaning of Section 47

and asked him to argue how even on such a basis he proposed to establish that the subject-matter of this suit was a matter relating to the

execution, discharge or satisfaction of the decree. The facts were that though the present plaintiff was made in that plaint party 2nd defendant, still it

is clear from the record that his name was at some stage and for some reason ordered to be struck off. Therefore he was not a person whom the

court regarded or wished to regard as a person sought to be bound by the adjudication in the action and by the decree eventually passed in the

suit. So much Mr. Sesha Aiyangar readily conceded, and indeed conceding it, he wished to build another argument thereon which I shall refer to

later. If therefore he was a person who was not bound by the adjudication, not having been a party to the proceedings at the time of the

adjudication and therefore was not a party to the decree, then, can it be said that any matter arising thereafter could be regarded as relating to the

execution of the decree so far as he was concerned? From the plaint in the previous action it is clear that the plaintiff sought to make him a party

because he had got effected an attachment of some of the properties, the subject-matter of the suit and subject of the mortgage on which the suit

was based. Therefore the plaintiff at that Stage required that any matters in contest between them regarding the right under which he had obtained

the attachment should be adjudicated by the court in that very suit. But having regard to the order directing that his name should be struck off we

must take it that for some reasons, right or wrong, the court refused to adjudicate with regard thereto and thereby adjudicated that very decree that

may be passed in the suit would not be binding on him and should not be regarded as affecting his interests in any manner or degree. After such an

adjudication it is impossible to say that any matter that may arise in execution of the decree to which he was not a party could be regarded as

relating to execution, that is to say, relating to the procedure by which the decree passed in the suit is being carried out. The learned vakil for the

appellant has referred to two cases. The first case cited by him was Sadanand Panaey v. Sheik Tufail Ahmad AIR(1920) All. 115. In that case the

person who was held to have been a party within the meaning of Section 47 had not only been made a party to the suit, but had failed to raise any

defence to the action or the claim of the plaintiff which he could have done by way of defence. This is clearly indicated by the learned Judges in that

case at page 116, 2nd column, where they use the following words, about

the right of equity of redemption which he could or could not exercise as he desired and which, as a matter of fact, he did not exercise.

No doubt later on they proceed to point out that he could have raised the objection in the course of execution. Strong reliance has been placed

by Mr. K. V. Sesha Aiyangar on these observations. But there are no materials before us with regard to the facts of this case on which we could

say whether the nature of the objection was such that it could have been reasonably raised in the course of execution even though the party had

failed to take it or make out by way of defence in the action. That decision therefore cannot possibly be regarded as at all applicable to the present

case because that was the case of execution of the decree which obviously was in the circumstances of the case binding on the party who as

plaintiff subsequently instituted the suit. The other case cited by the learned vakil for the appellant was Nand Kishore v. Sultan Singh ILR (192S)

Lah. 1. In that case the question whether it was not open to the person who subsequently filed the suit as plaintiff and who was also a party to the

previous suit to have set up his title by way of defence to the action and on his failure to do so he had not forfeited the right of setting up such title

afterwards was not argued at all. It does not at all appear to have been taken before the learned Judges. The decision in the case does not refer to

any such question and does not deal with it. The decision itself is based ultimately not on Section 47 but on Rule 92 of Order 21 of the Procedure

Code. That decision therefore cannot also be regarded as applicable to the present case. Section 47 of the Code refers to all questions arising

between the parties to the suit in which the decree was passed. The expression ""arising between the parties to the suit"" undoubtedly contemplates

their having continued to be parties to the suit, at any rate up to the stage at which the question arises. The present participle ""arising"" is the word

used, and the expression ""arising between the parties to the suit"" would be inappropriate if it should be referable to a question arising between one

who is a party to the suit and another who has ceased to be a party to it by order of court. That alone can be regarded as relating to the execution

of a decree which is concerned with carrying out the provisions of the decree, and if as in this case the court deliberately sent a party out and

refused to make him any party to the adjudication which it might make in the action, then it follows logically that any title or right which he may have

to set up and which the court refused to adjudicate upon cannot be regarded as coming under the expression ""execution of the decree"". We must

also observe that even though from the record it appears that the plaintiff''s name had been struck off from the list of parties in the suit by order of

court, still Mr. Sesha Aiyangar offered to argue the point that he must still in law be regarded as a party within the meaning of Section 47. In the

view we have taken of the other question it has really become unnecessary to consider this point. The second appeal is therefore dismissed with

costs.

Anantakrishna Aiyar, J.

The appellant instituted a prior suit O.S. No. 495 of 1916 on the file of the District Munsiff''s Court of Tuticorin against his mortgagor to recover

money due to him under his mortgage. He made the present plaintiff 2nd defendant to that suit. Copies of the plaint in that suit as well as of the

decree passed therein have been exhibited in the present suit as Exhibits II and II (a). In Exhibit II the plaint, there is a note against the 2nd

defendant ""removed from record"". In the decree there is a statement that the 2nd defendant has been removed from the record. On this state of the

record I am absolutely clear that the 2nd defendant in that suit who is the plaintiff in the present suit should not be taken to have been a party to

that suit at all within the meaning of Section 47 of the Code. Mr. Sesha Aiyangar, however, argues that he must be taken to be some sort of party

all the same. When the court declined in the previous suit to have the rights claimed by the then 2nd defendant adjudicated, I think it is not possible

to hold that the 2nd defendant should have intervened in execution proceedings and sought to have the adjudication of his rights made there in

execution proceedings u/s 47. The court having by its order, rightly or wrongly, removed the 2nd defendant from that suit, should be taken to have

ruled that none of his rights could be adjudicated in that suit, which includes of course both the stage before the decree and the stage after the

decree. I am therefore clearly of the opinion that in whatever sense he might be deemed to be a party, after his name had been removed from the

previous suit, the present suit, in the circumstances, is maintainable as was held by the lower appellate court. I therefore agree with my learned

brother that the second appeal should be dismissed with costs.