A suit cannot be restored against defendants who have been exonerated by the plaintiff.

( 1 ) IN this revision petition, which is filed against an order to restore a suit, the question for determination is whether the restoration of the suit could he in respect of defendants who have been exonerated by the plaintiff.

( 2 ) THE plaintiff, who is the 2nd respondent herein filed a suit for specific performance, basing his claim on an agreement to sell obtained by him from defendants 1 to 4 or in the alternative for return of the price paid; Defendants 5 to 9 who claimed to be entitled to a paramount title, have also been impleaded. A decree has been passed and against it defendants 5 to 9 appealed. In that appeal, A. S. No. 80 of 1952 on the file of the Subordinate Judge, Srikakulam an order remanding the case had been passed. When the suit came on for trial after remand, the plaintiff exonerated defendants 5 to 9. At the instance of the 1st defendant who remained ex parte this decree was again set aside and the suit was restored not only against defendants 1 to 4 but also against defendants 5 to 9. Against this order passed in C. M. A. 53 of 1954 the present Civil Revision Petition has been filed.

( 3 ) ON behalf of the petitioners it is contended that since the plaintiff has exonerated these defendants and therefore they were given up from the suit, any restoration of the suit by the learned Subordinate Judge Srikakulam cannot be even in respect of defendants 5 to 9 who have been given up From the suit. It is no doubt true that at the time of the passing of the decree after remand the learned Subordinate Judge, Srikakulam had before him as parties to the suit only defendants 1, to 4 as the rest of the defendants were given up by the plaintiff. It may be as has been pointed out in Jujishti Panda v. Lakshmana, AIR 1933 Mad 435, that the plaintiff felt unable to prove his case against these defendants or that he did not want them on record any longer, as they are unnecessary parties who claimed only paramount title. In any case, they were given up from the suit being improper parties and therefore there is no gain-saying that the suit proceeded only against defendants 1 to 4 and ended in a decree only against those defendants, as defendants 5 to 9 could not be said to be parties to the suit at the time of the passing of the decree. This position has been succinctly put by the Division Bench in the following passage at page 436;"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 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 mis-joinder they ceased to be parties to the suit. "the learned Judges also rely on an earlier Full Bench decision in Abdul Sac v. Sundara Mudaliar, AIR 1930 Mad 817 : ILR 54 Mad 81 (FB), and sum up the position by stating that a decree passed after the exoneration of some of the defendants should be taken as having treated these defendants as persons who had been dismissed from the suit and not as persons against whom the suit has been dismissed and that from the time of their dismissal they cease to be parties to the suit, because they had been wrongly joined. Any restoration therefore of a suit against persons who have been given up or exonerated from the suit would be, in my opinion, without jurisdiction, for an order in such circumstances where the restoration is under Order IX, Rule 13, Civil Procedure Code cannot be taken in any sense as approximating or equivalent to one under Order 1 Rule 10, Civil Procedure Code.

( 4 ) ON behalf of the respondents it is argued that Order IX, Rule 13 C. P. C. enables a suit to be restored and therefore it is the entire suit as originally filed and the subsequent exoneration of some defendants cannot be taken account of. But if it is only remembered