GAYARAMSAO Vs. BALKISHAN

JUDGEMENT

(1.) THIS is an application for revision of an order in an objection ease in which it was held that no objection lay Under Order 21, Rule 58, Civil I.P.C., but that the proper procedure was for the aplicant to proceed Under Section 47, ibid.

(2.) SETHS Balkisandas and Ramkiaandas filed C.S. No. 10 of 1914 against Gajadharsao and the applicant Gayaramsao for a declaration and for the recovery of a sum of money. The suit was proceeding ex parte against Grayaramsao. Daring the course of the trial a compromise was arrived at between the plaintiffs and defendants Gajadhargao whereby Gajadharsao became liable for the whole of the claim, and defendant 2 was to be discharged (sic). The judgment referring to this compromise stat Rs. Under the compromjse Gayaramsao (defendant 2) is to be discharged from all liability so far as this case is concerned.

(3.) IN this Court reliance is placed on Laxman v. Ganpat [1919] 15 N.L.R. 146, Krishnappa v. Periaswamy [1917] 40 Mad. 904 and Kanhaiyalal Kolar v. Lachhi A.I.R. 1925 Nag. 118 and it is contended that Gayaramsao ceased to be a party to the suit, and consequently Section 47, Civil P.C., had no application. I am, however, of the opinion that although the word 'discharged' is used in the judgment and decree Gayaramsao continued to be a party to the suit and the suit was meant to be dismissed against him. The case is not one where, for some such reason as his not being a party necessary for the adjudication of the suit, he was removed from the array of defendants so that the position was as if it had never included him. The real position here is that Gayaramsao was allowed to continue as a party and the claim was as it were, admitted to be not likely to succeed and sought to be dismissed as against him. He was discharged not from the suit but from liability and it is the decree itself that discharged him from liability. There was an adjudication upon the claim against him, it being in accordance with the plaintiffs' wishes or admission. The oases cited are thus distinguishable.