Thandavan Chettiar and Another vs U.K. Unnalachan

Jackson, J.—We are not prepared to hold that Walsh, J., has erred. If two persons, one of whom is a party to the suit and one not a party,

prefer a claim under Order 21, Rule 58, the party to the suit must proceed by way of appeal by virtue of Section 47 and ? the non-party by way of

suit by virtue of Order 21, Rule 63. In the obiter dictum at the end of U Kala v. Ma Hnin U AIR 1927 Rang 137 it is assumed that the claim was

not made in execution, (see bottom of p. lid) which distinguishes it from our case, though why this assumption is made we do not understand. Goba

Nathu v. Sakharam Taju AIR 1920 Bom. 223 proceeds on the rights of the auction purchaser. We see no absurdity, in one party proceeding by

way of suit and another by way of appeal; the two proceedings could ordinarily be linked: while if it is a district or subordinate Court that is

executing the decree1 against a party to the suit, its jurisdiction should not be taken away at the party''s own instance by coupling himself with a

non-party. The importance of giving due scope to Section 47 is noted by the Judicial Committee in Prosunno Kumar Sanyal v. Kali Das Sanyal

(1892) 19 Cal. 683. This Letters Patent appeal is dismissed with costs.