The main legal point established in the judgment is the interpretation of Section 47 of the Civil Procedure Code and the duty of the Trial Judge to strike out the name of a party improperly impleaded.

Horace Owen Compton Beasley, C.J.

1. This case has been referred to us by our brother Jackson, J., because the question for decision by us has been the subject of conflicting decisions in Krishnappa v. Periaswami (1916) I.L.R. 40 M. 964: 32 M.L.J. 532 and Sethu Konar v. Ramaswami Konar (1925) I.I.R. 49 M. 494: 50 M.L.J. 205.

2. The question before us arises out of proceedings in execution. The 2nd defendant in Original Suit No. 348 of 1917 on the file of the 2nd Additional District Munsifs Court of Madura is the appellant here. The facts of the case may be briefly stated as follows. One Kaliappa Pillai was the original owner of the properties, the subject-matter of the suit, He left a widow and an adopted son Ramaswami Pillai. In 1889 the latter released the suit properties in favour of his adoptive mother. She sold the property in 1894 and between that date and 1909 there were different purchasers. In 1909 the appellant became the purchaser of the property and created a usufructuary mortgage in 1910 in . favour of the 6th defendant. In 1906 Ramaswami Pillai executed a mortgage of some of the properties which mortgage was assigned to the present 1st respondent. In 1917 the 1st respondent filed a suit to enforce the mortgage and bring the properties to sale. Ramaswamis son was the 1st defendant and defendants 2 to 5 were imp-leaded in that suit and also the 6th defendant the usufructuary mortgagee. In that suit the 1st defendant was ex parte. The 2nd defendant claimed a title paramount by purchase and pleaded that he was not a necessary party to the suit. The District Munsif dismissed the suit as against defendants 2 to 6 but gave a decree against the 1st defendant. In the judgment he states as follows:

2nd defendant claims an independent title. He has endorsed on the plaint that he does not derive his title from the mortgagor but quite independently of him. Therefore, he is not a necessary party to the suit. The suit must be therefore dismissed with costs against defendants 2 to 6. Plaintiffs will get a decree against the other defendants in the suit.

3. In the decree also the suit was dismissed as against defendants 2 to 6. An execution petition was then presented by the plaintiff to bring the property to sale. No notice was given to the other defendants. He dispossessed the 6th defendant who was then in possession of the property. The appellant then presented an application to put the 6th defendant in possession of the property. The 1st respondent disputed the appellants title on the merits and put him to proof of all the sales and purchases. The District Munsif held that the plaintiff (1st respondent) was not entitled to evict the defendants. In his order the District Munsif stated The plaintiff is not entitled in execution of this decree to evict the 6th defendant or defendants 2 to 5.

4. The 1st respondent appealed to the District Judge at Madura, who held that the question of title as between0 the 1st respondent and defendants 2 to 6 should have been investigated and that since the defendants 2 to 6 were parties to the suit, the 1st respondent was barred by Section 47, Civil Procedure Code, from instituting a separate suit, but that the application under Section 47 of the Civil Procedure Code could have been treated as a suit if the learned District Munsif considered it sufficiently complicated. The appellants contention here is that the question of his title and the 6th defendants title was not a matter which could be gone into in the execution proceedings.

5. The question is whether defendants 2 to 6 in the suit are, under the provisions of Section 47 of the Civil Procedure Code, defendants against whom a suit has been dismissed and therefore parties to the suit. The contention of the appellant is that as the defendants were held not to have been properly imp-leaded in the suit and the suit on that ground was dismissed as against them, they are not defendants against whom a suit has been dismissed as is provided in S