The interpretation of Section 47 of the Procedure Code and the implications of a person being removed from the record of the previous suit.

Srinivasa Aiyangar, J.

1. 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 plaintiffs 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 (1920) A.I.R. 1923 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 colu