JUDGMENT

1. The question raised in this case is whether the action of the Plaintiff is barred by the provisions of sec. 244 of the Code of Civil Procedure. It appears that the Plaintiff had brought a suit against the Defendants 1 to 3, as also against Defendant No. 4 for the recovery of a certain sum of money. The suit was decreed against the Defendant No. 4, but dismissed against the other Defendants. In execution of that decree, a certain property was attached by the Plaintiff, the decree-holder, as belonging to Defendant No. 4 whereupon an objection was preferred by and on behalf of the Defendants 1 to 3, upon the ground that the property belonged to them. The objection was allowed by the executing Court. Against that order, an appeal was preferred by the Plaintiff; but the Appellate Court held that the order made by the lower Court being an order under sec. 278 of the Code of Civil Procedure, no appeal lay to the higher Court; and accordingly it was dismissed. Thereupon, the present suit was brought to have it declared that the property in question belonged, not to Defendants 1 to 3, but to Defendant No. 4, and it was in this suit that the plea was raised by the Defendant that it is barred by the provisions of sec. 244 of the Code of Civil Procedure.

2. The Subordinate Judge, in reversing the judgment of the Court of first instance, relied upon the case of Punchanun Bundopadhya v. Rabia Bibi ILR 17 Cal. 711 (1890) and being of opinion that the Defendants 1 to 3 being parties to the suit previously brought by the Plaintiff, the question now raised between the Plaintiff on the one hand and the said Defendants on the other, should have been decided under sec. 244 of the Code, and therefore no separate suit would lie. As to the case of Punchanun Bundopadhya ILR 17 Cal. 711 (1890) referred to by the Subordinate Judge, all we need say is that it has very little bearing upon the question we have to decide in the present case. There is, however, a very recent decision of this Court in the case of Ram Prosad Pandey v. Jagannath Ram Marwari 6 C.W.N. 10 (1901), which is directly in point; and this case seems to be well supported by, among others, the case of Kameshwar Pershad v. Run Bahadur Singh ILR 12 Cal. 458 (1886) and also by the case of Kalka Prasad v. Basant Ram ILR 23 All. 346 (1901). And what has been held in the case of Ram Prosad Pandey 6 C.W.N. 10 (1901) is that, when an action is dismissed against one of the Defendants, but decreed against the others, he should not be considered as a party to the suit within the meaning of cl. (c) of sec. 244 of the Code of Civil Procedure; that his objection to the attachment of any property claimed to be his own would fall under secs. 278 and 280 of the Code and not under sec. 244, and that his remedy against any order passed against him would be by a regular suit under sec. 283 of the Code. The words of cl. (c) of sec. 244 may perhaps be read as supporting the view adopted by the Subordinate Judge; but we think that a more liberal construction than the restrictive construction that has been put upon those words ought to be put upon them. And we think that when a suit is dismissed against one of the parties, but decreed against the rest, that party could not be regarded as a party to the suit in relation to the execution, discharge or satisfaction of the decree within the meaning of sec. 244 of the Code. That is a view which well accords with common sense, and we think we should adopt it.

3. We accordingly set aside the judgment of the Court below, and send the case back for trial on the merits. Costs will abide the result. The Court-fee on the memorandum of appeal will be refunded.