The legal principle established is that in cases of misjoinder in a mortgage suit, the party whose claim was not adjudicated upon and who was exonerated does not remain a party to the suit for the purpose of Section 47 of the Code of Civil Procedure.

1. The appellant who claimed title as purchaser of certain items of property sued to redeem a mortgage executed by the sixth defendant in favour of the first defendant. The fourth defendant who is the present respondent was made a party to the suit on the ground that he was claiming an interest in the property. As he claimed an interest adverse to the mortgagor and mortgagee, he was exonerated from the suit. The order recites that the fourth defendant was an unnecessary party to the suit and that he was exonerated with costs "leaving open the issues affecting him." A decree for redemption was passed in favour of the plaintiff-appellant, and he paid the amount decreed and prayed that possession of the mortgaged property be delivered to him. The amin in execution delivered a portion of the property in the possession of the respondent. The respondent who had been exonerated from the suit and whose claims to the properties was not adjudicated upon filed a petition under Order XXI, Rule 100 of the Code of Civil Procedure, objecting to possession being given on the ground that the property belonged to him and was in his possession and enjoyment and that the decree in the suit was collusively obtained by the plaintiff against the sixth defendant who had no title. The decree-holder opposed the application and contended inter alia that as the fourth defendant was a party to the suit his remedy was under Section 47 of the Code and not under Order XXI, Rule 100. The District Munsif was of opinion that Section 47 did not apply and that he came under Order XXI, Rule 100. He ordered the fourth defendant to be restored to possession. On appeal the District Judge was of opinion that Section 47 applied but dismissed the appeal on the ground that the provisions of Section 47 and Order XXI, Rule 100 were not mutually exclusive.

2. The chief grounds urged in appeal are that the fourth defendant continued to be a party to the suit notwithstanding the fact that he was exonerated, that the lower Appellate Court, should have gone into the question of the title of the fourth defendant and should have dismissed his petition if he was unable to show a title superior to that of the plaintiff instead of having confined itself to the main question of possession and dispossession.

3. We are of opinion that the case falls under Order XXI, Rule 100 of the Code of Civil Procedure, and that the lower Courts were right in refusing to decide in execution proceedings questions which had advisedly not been adjudicated upon in the suit.

4. When a party to a mortgage suit is exonerated on the ground that he sets up a title adverse to both the mortgagor and mortgagee, the ground of exoneration is that he ought never to have been made a party, the suit being bad for multifariousness as the plaintiff is joining causes of action which ought not to be joined and the joinder of which will be embarrassing. In Jaggeswara Dutt v. Bhuban Mohan Mitra (1906) I.L.R. 33 Calc. 425 it was held that such a suit was against the provisions of Sections 44 and 45 of the old Code of Civil Procedure (Order II, Rules 4 and 5 of the present Code) and was bad for multifariousness and in Musammat Radha Kunwar v. Thakur Reoti Singh (1916) 20 C.W.N. 1279 (P.C.) their Lordships of the Privy Council were of opinion that the joinder in a mortgage suit of parties who set up adverse claims was irregular and would only lead to confusion.

5. The exoneration in the present case having been on the ground of misjoinder we are of opinion that the party whose claim was not adjudicated upon does not remain a party to the suit for the purpose of Section 47 of the Code of Civil Procedure. Exoneration from the suit may be due to various causes and the question whether a party remains on record for the purpose of Section 47 in spite of such exoneration will depend upon the nature and scope of the order having regard to the pleadings and the reason which led to such dismissal or exoneration. To hold that in c