SARJOO PROSAD, C. J. - (1.) AFTER having given my anxious consideration to the matter I regret that under the law I feel bound to uphold the decision of the learned District Judge in appeal, despite my sympathy for the decree-holder appellant.
(2.) THE appeal arises out of an execution case. THE relevant facts, as set out in the judgment, are that Bijaychand and his son Sawaichand executed a mortgage bond in respect of a house property, which was ancestral property, in favour of one Roopraj for a sum of Rs. 3,000/- on 30th of October, 1947. In the execution of the bond in question Bijaychand also purported to act as a guardian of his minor sons Kalyanchand, Sohanchand and Premchand. Roopraj, the mortgagee, then appears to have transferred his interest to Bhoorchand, the appellant before me. THE mortgage in question was apparently a usufructuary mortgage and Bijaychand the father and his son Sawaichand had also executed a rent note in favour of the mortgagee and got a lease back of the mortgage property. Under the terms of the rent-note, a certain rent was payable to the mortgagee, the lessor; but on account of default in payment of rent, Bhoorchand, the assignee, instituted a suit on 4th of September, 1948, for recovery of rent and ejectment. In that suit he impleaded not only the executants of the rent-note in question, namely, -Bijaychand and his son Sawaichand, but also the other son Kalyanchand. Bijaychand and Sawaichand did not appear to contest the suit. THE suit was mainly contested by Kalyanchand. On the 22nd of January, 1951, an ex-parte decree for rent and ejectment was passed against the defendants Bijaychand and Sawaichand, but the suit was dismissed with costs against the contesting defendant Kalyanchand. In execution, however, the decree-holder proceeded to execute the decree against all the defendants. Kalyanchand resisted the execution on the ground that the suit having been dismissed against him, the executing court could not go behind the decree and eject him from possession of the disputed property. He claimed that the property was ancestral and he was in occupation in his own right and not as a tenant deriving interest under the rent-note in question. THE decree was merely passed against his father and brother and the suit had been dismissed against him on contest. THErefore, no execution could be levied so far as he was concerned. THE learned Munsif rejected the plea of Kalyan Chand and allowed the execution to proceed against all the defendants; but on appeal the learned District Judge by his order dated 16th January, 1958, held that the execution could not proceed against Kalyanchand and his objections were well founded. He accordingly dismissed the execution case against him. THE present appeal is directed against the above order of the learned District Judge. Mr. Hastimal on behalf of the appellant has vehemently attacked the order of the learned District Judge. He has tried to base his case on the principle that it is not that the suit was dismissed against Kalyan Chand but that Kalyanchand had been simply dismissed out of the action and he could not claim in execution of the decree any better title than that of his father and brother against whom the suit for ejectment had been decreed. According to the contention of the learned counsel, the suit was based on the rent-note executed by the father and the brother, and Kalyanchand need not have been made a party to the suit at all. Therefore, urges the learned counsel, whether the suit was decreed or dismissed against him, makes no difference at all to the execution case and the learned Judge was in error in not allowing the execution to proceed, as held by the learned Munsif, against all the defendants. On behalf of the respondent, however, it has been urged by Mr. Prakash Chandra that rightly or wrongly the respondent Kalyanchand was made a party to the suit. It was not that he was neither a necessary nor a proper party to the suit. The property was ancestral property and he was in occupation in his own rights independently of the rights of the father or the brother, who were the executants of the rent-note. If the decree-holder had been satisfied in obtaining a decree only against Bijaychand and Sawaichand there might have been something to be said in favour of the learned counsel for the appellant. Unfortunately I find from the judgement passed by the learned Munsif in the suit to which the decree under execution relates that definite issues were framed as to the liability for ejectment of the defendant Kalyanchand; and although the learned Munsif held that so far as the other two defendants were concerned their liability for ejectment on the basis of the rent-note could not be doubted, yet nothing had been shown by the plaintiff to indicate under what tight he sought the eviction of the defendant Kalyanchand. One of the issues was, "how is defendant Kalyanchand liable;" and in disposing of that issue the court observed as follows: - "the plaintiff has led no evidence to show the liability of defendant Kalyanchand. The first two issues are, therefore, decided against defendants Nos. 1 and 2 and the third in favour of Kalyanchand. " On this finding he decreed the suit against the other defendants with costs but dismissed it with costs against Kalyan Chand. It is obvious, that the decree-holder definitely raised an issue against the defendant Kalyanchand and sought the court to decide the matter of his liability for ejectment) and obtained a decision from the court on the point. Under the circumstances, it is now too late for him to contend that Kalyanchand was nether a necessary nor a proper party to the suit. The liability of Kalyanchand for ejectment could be determined either as deriving title through his father and brother, who were the executants of the rent-note in question, or in his own independent rights, as an occupant of the ancestral property, and the plaintiff decree-holder having failed to obtain a judgment in his favour it is difficult now for the decree-holder to contend that the executing court could go behind the decree and proceed to eject even Kalyanchand, in whose favour the suit was dismissed with costs. Mr. Hastimal has ably sought to fortify his submissions on certain decisions which he has cited,but in my opinion, those decisions are distinguishable and cannot be held to apply to the circumstances of the present case. He has invited my attention, particularly to two Full Bench decisions of tne Madras High Court in Abdul Sac Vs. Sundara Mudaliar (1) and Katragadda China Ramayya Vs. Chiruvella Venkanraju (2 ). The first case can be clearly distinguished on the ground that the District Munsif dismissed the suit as against the defendants, who claimed paramount title and were held as such not to be necessary parties to the suit. The suit in that case was a suit on mortgage. It is well known that under Order 34 rule 1 Civil Procedure Code, a person having paramount title is not a necessary party to a mortgage suit, and is not even a proper party. In the other case also it appears that the suit was based on a promissory note and since the second defendant was not a party to the note he was exonerated from any liability in the suit, and a decree was given only against the first defendant, who had executed the promissory note in question. It is obvious that in this case also the suit being on a promissory note other defendant was not treated as a necessary or a proper party to the suit at all; and in the circumstances any liability that there could be as against that defendant by virtue of a decree having been passed against the father on the doctrine of pious obligation was left to be investigated in the execution case. Subba Rao, J. in delivering the judgment of the Full Bench, observed as follows: - "the exoneration of a son from the suit, or the dismissal of it against him would not exonerate him from his liability under the Hindu law unless in dismissing the suit against him the Court expressly or impliedly held that he was not liable for the father's debt. That would depend upon the facts of each case. " It was further expressly pointed out that, "the second defendant was exonerated because to a suit on a promissory note executed by the father he was neither a necessary nor proper party Unfortunately the same considerations cannot be applied to this case. The other case to which the learned counsel referred, is a decision in Suresh Mohan Thakur Vs. Shamal Mall Bubna (3 ). That case again is obviously distinguishable. There the opposite party No. 2 was exempted by the Rent Controller on the ground that on the admission of the petitioner himself there was no relationship of landlord and tenant between the two. In other words, he did not treat the opposite party No. 2 as a party to the proceeding at all. In those circumstances it was held that where parties have been wrongly impleaded and the suit against them is abandoned by the plaintiff or they are exonerated on that account, or when there is a finding that they have been wrongly joined, the correct procedure is to strike out their names, as having been improperly impleaded on the ground of misjoinder. In such cases they cease to be parties to the suit and such defendants must be treated as persons who had been dismissed from the suit, and not as personal against whom the suit had been dismissed. Therefore, where a suit is dismissed against a person on the ground that he was improperly impleaded as party having no concern with the subject matter of the suit, such a person cannot be deemed to be a party to the suit within the meaning of sec. 47 of the Civil Procedure Code, even if his name is not actually removed from the record. Mr. P. C. Mathur on behalf of the respondent has referred to the decisions in Prahlad Das Vs. Dasarathi Satpathi (4) and Deonarain Singh Vs. Bibi Khatoon (5), which in my opinion are clearly in point. In the first case, the creditor impleaded the sons of a Hindu debtor as parties to the suit along with their father, who did not represent him in the suit. In such a suit, rightly or wrongly, the Court refused to pass a decree against the sons and passed a decree against the father only. It was held that the decree could not be said to have been obtained against the father both in his individual capacity and also as representing the sons, and such a decree against the father not being a decree against the sons could not be executed against them, not because they were not under a pious obligation to pay the debt of their father, which may be neither illegal nor immoral, but because the procedure of enforcing their liability having been adopted the Court rightly or wrongly refused to enforce it To a similar effect is the other decision. In that case, it was held that where upon a suit executed by a person as the Karta of the joint family, the plaintiff impleaded the sons and the grandsons of the Karta and obtained a decree in terms against the father and some of the sons and grandsons, it could not be urged in the proceedings in execution of the decree that the father represented the interest of the sons and the grandsons and that the plaintiff obtained a decree against the father in his representative capacity. These cases are based upon the dictum of the Privy Council in Raja Ram Vs. Raja Bakhsh Singh (6 ). The suit there was instituted against the sons and grandsons on a mortgage executed by a deceased father. There was nothing to show that debt was not contracted for purposes regarded as immoral by Hindu law. The Judge, instead of decreeing the suit against the sons and grandsons, as representatives of the father, decreed it only against the sons as legal representatives of the father and dismissed it as against the grandsons. It was held that the suit having been dismissed against the grandsons, the decree could not operate against their interest in the family property, which therefore, could not be attached in execution of the decree. I accept the principles underlying the above decisions, with which I respectfully agree and, therefore, I am compelled to uphold the judgment of the learned District Judge, allowing the objection of the defendant Kalyan Chand. The appeal, therefore, fails and is dismissed but in the circumstances of the case there will be no order as to costs. .;