CHHOTELAL Vs. BHAGWANDAS

JUDGEMENT

(1.) STAPLES , A.J.C. 1. This is an appeal against the decree of the District Judge, Nimar, dismissing the suit of the plaintiff-appellant on the ground that it was barred by Section 47, Civil P. C. The trial Court had passed a decree in favour of the plaintiff, but on an appeal by the defendant the District Judge dismissed the suit as stated above. The only question to be decided in this appeal is whether the view taken by the District Judge is correct.

(2.) IT is admitted that there was a former suit in which the present plaintiff-appellant Chhotelal was a defendant. That suit was Civil Suit No. 876 of 1924 in the Court of the First Class Subordinate Judge, Jalgaon, brought by Bhagwandas respondent 1, against Bulakidas, respondent 2, and Chhotelal, the present appellant. I have obtained the record of that suit and there is nothing to show that Chhotelal was discharged: on the contrary he was retained on the record and mentioned in the decree. The suit was dismissed, it is true, against him, but he remained a party until the decision of the suit. In these circumstances it is clear that the view taken by the District Judge is correct and that the cases cited by the learned Counsel for the appellant, Laxman v. Ganpat AIR 1919 Nag 120 and Krishnappa v. Periyaswamy (1917) 40 Mad 964, do not apply, as in both those cases the defendant was discharged before the decision of the suit. On the other hand, I have been referred by the learned Counsel for the respondents to Mt. Madho Bibi v. Hazari Mal Marwari AIR 1929 Pat 141 and Sannamma v. Radhabhavi AIR 1918 Mad 123, in which the earlier decision in Krishnappa v. Periaswamy (1917) 40 Mad 964 was considered. The correct view is that, where a party has been struck off under the provisions of Order 1, Rule 10, Civil P. C., he is not a party to the suit within the meaning of Section 47 of the Code; but where he is retained on the record he is a party to the suit within the meaning of that section, whether he be a plaintiff whose suit is dismissed or a defendant against whom the suit is dismissed.