Judgment :- 1. O.S. No. 900 of 1961 on the file of the Munsiff Court, Trivandrum was a suit for declaration of title, for cancellation of an order passed in execution of the decree in O.S. No. 467 of 1958, Munsiff Court, Trivandrum, and for an injunction restraining execution of the same. One of the defences raised to the said suit was that the suit was barred by S.47 of the C.P.C., that the plaintiff's proper remedy if any, was to agitate the matter in execution proceedings in O.S. 467 of 1958; and as in the said proceedings a decision adverse to him had been given as evidenced by Ex. P1, no fresh suit was maintainable. The defence was upheld by the trial Court and the plaintiff's suit was dismissed; but on appeal, the learned District Judge of Trivandrum held that the said suit was not barred by S.47 of the C.P.C., and remanded the matter to the trial court for disposal on the merits, after considering the other issues, most of which had been left open by the trial Court. Hence this appeal by the 1st defendant. 2. For the sake of convenience the parties would be referred to by their rank in the trial court. 3. The plaintiff had mortgaged a certain property to the 2nd defendant on 10-7-1952 for a consideration of Rs. 1,500/- of which Rs. 1,200/- was received in cash and the balance was agreed to be paid within a short time. Default having been made in payment of the said balance amount, the plaintiff filed O.S. No. 467 of 1958 in the Munsiff Court, Trivandrum for recovery of the balance mortgage amount. To the said suit the present 2nd defendant (mortgagee) was the 1st defendant; the present 1st defendant (appellant) was the 3rd defendant. The 2nd defendant in that suit was a sub-mortgagee. The decree in that suit was exhibited as Ex D1. The judgment does not appear to have been exhibited in the trial Court; but has been referred to in the judgment of the appellate Court. A certified copy of the same has been tendered before me with a petition to receive it as additional evidence. It is seen that the certified copy now tendered was produced before the trial court and was marked as Ex. D2. A certified copy of the same has been tendered before me with a petition to receive it as additional evidence. It is seen that the certified copy now tendered was produced before the trial court and was marked as Ex. D2. The reception of the document has not been opposed and the petition to receive the same has been allowed and the judgment in O.S. No. 467 of 1958 is marked as Ex. D2. 4. From Ex. D2 it will be seen that defendants 2 to 4 in that suit were joined as persons claiming under the mortgagee and in possession under the mortgagee. It is also seen that the claim was against all the defendants and that the present 1st defendant contended that the plaintiff was not entitled to any relief against him. On the contentions of the present 1st defendant, issues 5 and 6 would appear to have been raised which ran as follows: "5. Under what right is the 3rd defendant in possession? 6. Whether he has perfected title by adverse possession?". The decretal part of the judgment ran as follows: "In the result the plaintiff is given a decree against the 1st defendant for the recovery of Rs. 300/-with future interest at 6 present from date of suit till date of recovery. The plaintiff is also allowed his costs as against the 1st defendant. Defendants will suffer their costs". Issues 5 and 6 along with other issues were all left open without any adjudication. In execution of the above decree, the plaintiff attached the mortgage right of the 1st defendant (the present 2nd defendant). Objection was raised by the present 1st defendant (3rd defendant in O.S. No. 467 of 1958) that the mortgage right belonged to him and was not attachable at all, at the instance of the plaintiff. The said objection was upheld by the order evidenced by Ex. P1. It was to set aside Ex. P1 and for consequential reliefs that the suit out of which the present C.M.A arises, was filed. 5. It was agreed that if the present 1st defendant can be said to be a party to the suit O.S. No. 467 of 1958, then any adjudication of rights, had to be made under S.47 of the C.P.C.; and as the same had been so made by Ex. P1, a fresh suit would not be maintainable. 6. 5. It was agreed that if the present 1st defendant can be said to be a party to the suit O.S. No. 467 of 1958, then any adjudication of rights, had to be made under S.47 of the C.P.C.; and as the same had been so made by Ex. P1, a fresh suit would not be maintainable. 6. The only question for determination therefore is: was the present 1st defendant a party to O. S. No. 467 of 1958, Munsiff Court, Trivandrum? That the 1st defendant was eo nomini a party to O.S. No. 467 of 1958, is beyond dispute. On behalf of the appellant, it is claimed that against him the suit was dismissed, and such a person is a party to the suit within the meaning of S.47 of the C.P.C. The explanation to S.47(3) of the CPC. runs as follows: "Explanation - For the purposes of this section, a plaintiff whose suit has been dismissed, a defendant against whom a suit has been dismissed and a purchaser at a sale in execution of the decree are parties to the suit". On behalf of respondent it is contended that the present 1st defendant was one who was improperly joined as a party to O.S. No. 467 of 1958; and as there was no adjudication of his rights; he should be regarded as one who was struck off from the party array. My attention has been drawn to two sets of rulings, in one of which it has been held that a person against whom a suit has been dismissed is still a party to the suit. (See for instance the Full Bench decision in Vaddadi Sannamma v. Koduganti Radhabhayi (ILR. 41 Mad. 418) and in the other of which it has been ruled that a person wrongly joined and exonerated from the claim is not a party to the suit. (Vide Krishnappa Mudaly v. Periaswamy Mudaly, ILR. 1940 Mad. 964). 7. On the facts set out by me earlier, I do not think that the present 1st defendant can be said to be one who was improperly joined in O.S. No. 467 of 1958. As can be gathered from Ext. D-2, defendants 2 to 4 were joined as persons, claiming under the mortgagee, the 1st defendant. The present 1st defendant claimed independent title. 8. As can be gathered from Ext. D-2, defendants 2 to 4 were joined as persons, claiming under the mortgagee, the 1st defendant. The present 1st defendant claimed independent title. 8. The next question is: was there a dismissal of the suit as against him so as to attract the explanation to S.47 (3) of the CPC? From a reading of Ex. D-2, it would appear that relief was claimed against the mortgaged property and against the defendants 1 to 4 in O.S. No. 467 of 1953. This was accepted in the course of the arguments. It is also seen that a decree was granted only against the first defendant. To me, it appears plain that reliefs sought for against the mortgaged property and against defendants 2 to 4 were refused, and to that extent there was a dismissal of the suit as against them. (See also Explanation.5 to S.11 of the CPC.). It may also be noted that there was no issue as to non joinder or misjoinder of parties or causes of action in the suit. 9. That a person who has been properly impleaded as defendant in a suit, but against whom the suit is dismissed, on account of the plaintiff's election to abandon his case so far as it affects that person, is "a defendant against whom a suit has been dismissed" within the explanation to S.47 of the CPC. has been ruled by the Full Bench decision in Vaddadi Sannamma v. Koduganti Radhabhayi (ILR. 41 Madras 418). The principle of the above decision has been explained in two decisions reported in Sethu Konar v. Ramaswamy Konar (AIR. 1926 Mad. 484) and Linga Iyer v. Lakshmanan Chettiar (AIR. 1926 Mad. 687). These decisions take the view that unless a party to a suit is struck off or removed he remains as a party to the suit; and that striking off is appropriate to a case of mis joinder of parties, the proper thing in other cases being an order of dismissal. 10. A case which comes very close to the facts of the present case is reported in Nirodi Kali Roy Choudhury v. Rai Harendra Nath Choudhury (AIR. 1938 Cal. 113). 10. A case which comes very close to the facts of the present case is reported in Nirodi Kali Roy Choudhury v. Rai Harendra Nath Choudhury (AIR. 1938 Cal. 113). The facts as can be gathered from the judgment of B.K. Mukherjea, J. (as he then was) are these: "The plaintiffs' father and defendant 2 were joint owners of the disputed property which was a tank and their shares were 1/3rd and 2/3rd respectively. In 1923 there was a partition between them under which the tank in its entirety was allotted to the plaintiffs' father. In Money Suit No. 195 of 1930, defendant 1 got a decree against defendant 2. The suit was for contribution against a large number of cosharers including the present plaintiffs. As the plaintiffs had paid their share of the dues, no relief was claimed by them but they were eo nomini parties to the suit. The suit culminated in an ex parte decree against those defendants only against whom contribution was claimed. In execution of that decree the 1st defendant attached the 2/3rd share of defendant 2 in the tank in suit. The plaintiff preferred a claim under 0.21 R.58, which was dismissed in limine on the ground of delay. The property was then sold and the plaintiffs filed a suit for declaration of title to the tank. 11. On the above facts it was held that the plaintiffs were parties to the suit and their suit for declaration was barred by reason of S.47 of the CPC. 12. Following the principles laid down in the above decisions, I hold that the present 1st defendant was a party to O.S. No. 467 of 1958, Munsiff Court, Trivandrum, and as there was an adjudication of his rights, as evidenced by Ex. P1, the present suit to set aside the same and for consequential reliefs, is barred by S.47 of the CPC. 13. The appeal is accordingly allowed, the judgment and decree of the lower appellate Court are set aside and those of the trial Court restored, with costs throughout. Allowed.