( 1 ) THIS appeal is filed against the order dt. 28-7-1973 passed by the Civil judge, Bijapur, in Exn. A. 3/73 confirming the order dt. 23-6-1973 passed by the Principal Munsiff, Jamkhandi, in HRC Exn Case 64/1972. The respondent-decree-holdar Babulal had filed HRC Case 1/67 against Hazrabi, the widow of Nabi Sab and Guduma the present appellant who is the daughter of the said Nabi Sab, for possession of the suit premises under s. 21 (1) (a) and (h) of the Mysore Rent Control Act, 1961, Babulal alleged in the HRC 1/67 that he was the owner and the landlord of the, suit premises, that deceased Nabi Sab was the tenant of the suit premises under the rent note dt. 22-11-49, that after his death the rents fell due from the two heirs of Nabi Sab, that they failed to pay the arrears of rent and deliver possession of the suit premises, that a petition for eviction was filed on ground of default in payment of rents as well as on the ground of bonafide requirement of the landlord for his personal use and occupation. ( 2 ) AGAINST the interim order passed by the Court a CRP was filed and this Court directed the learned, Munsiff to decide the question of relationship of landlord and tenant between the parties and thereafter to decide the Other questions arising in the HRC proceeding. Thereafter the learned munsiff, by an order dt. 10-2-72, held that the relationship of landlord and tenant existed between the decree-holder and Hazrabi only and that no such relationship existed between the decree-holder and Guduma, and in the same order the HRC application against Guduma was dismissed. Thereafter an application was filed by the decree-holder in the said HRC 1/67 under s. 29 (4) of the Rent Control Act to stop the proceedings against Hazarabi and to direct delivery of possession to the decree-holder since Hazrabi failed to deposit the arrears of rent inspite of directions given by the Court accordingly, the learned Munsiff passed an order under S. 29 (4) of the r. C. Act and directed Hazrabi to put the decree-holder in possession of the ground floor of the suit premises by 31-5-1972. Thereafter the decreeholder put the said order in execution in HRC Exn. 54/72 on 1-6-1972 praying for possession of the ground floor of the, suit premises. Thereafter the decreeholder put the said order in execution in HRC Exn. 54/72 on 1-6-1972 praying for possession of the ground floor of the, suit premises. In the mean while Guduma filed an application in the execution case praying for an order projecting her rights in issuing the possession warrant. That application was dismissed on 3-8-1972. The possession warrant was thereafter issued and was returned unexecuted since Guduma offered obstruction. Thereafter the decree-holder filed an application for the removal of the obstruction. Then, the learned Musiff directed the decreet-holder in the first instance, to file a Misc Appln under Or. 21, R. 97 CPC. On the objections filed on behalf of Guduma the learned Munsiff psased an order on 9-3-1973 holding that the application under Or. 21, R. 97 CPC was not maintainable and directed that the, Misc Appln be, taken on file in the, execution itself and be numbered as I. A.-II. Guduma filed her objections to I. A.-II contending that an order had been passed in HRC case to the effect that she is not a tenant and that therefore her possession could not be! disturbed under the order of eviction obtained by the decree-holder in HRC 1 of 1967. The learned Munsiff held that the resistance offered by Guduma is not in her own right as contemplated under the proviso to S. 30 of the Karnataka rent Control Act and directed the delivery of possession. Thereupon guduma appealed in Exn App. 3 of 1973 to the Court of the Principal civil Judge, Bijapur. ( 3 ) THE lower appellate Court felt that the, order passed on I. A.-II by the learaned Munsiff must be deemed to be one under Or. 21, R. 97 CPC and that therefore the appeal was not maintainable- It also considered the objections raised by Guduma and held that Guduma was not entitled to resist the order for delivery of possession under the proviso to S. 30 of the karnataka Rent Control Act. ( 4 ) IT is contended by Sri Swamy, learned Counsel for the Appellant, that the learned Munsiff was right in coming to, the conclusion that the objection raised by Guduma is one which ought to be, dealt with under s. 47 CPC and that the lower appellate Court was in error in holding that the order is one under Or. 21, R. 97 CPC. 21, R. 97 CPC. In support of his contention be, has relied on the decisions in Vaddadi Sanmamma v. Koduganti Radhabai, AIR 1918 Mad 123. Mahalinga Pathar v. Santhama Gopalafcrishnan, AIR 1959 Mad 80 . Shiva Pujan Dubey v. Baban Lal, AIR 1959 Pat 13 surinder Nath v. Ramsarup, AIR 1944 Lah 294. and Babu Ram v. Shapi-Ul-Za-man, AIR 1944 Lah 273. As against this Mr. Krishnaswamy Rao, the learned counsel for the respondent, has relied on the following decisions in support of his contention that the objection raised by Guduma must be deemed to be one under Or. 21, R. 97 CPC and that S. 47 CPC has no application in this case. ( 5 ) IN Abdul Sac v. Sundara Mudaliar, AIR. 1930 Mad. 817 FB. the suit to enforce, a mortgage was dismissed against defendants 2 to 6 and dcneteed against defendant 1 since defendant 2 claimed an independent title. The Full Bench approved the decision of the same Count in krishnappa Mudaly v. Periaswamy Mudaly, ILR. 40 Med. 964. and held that where a suit is dismissed against a person on the ground that he was improperly impleaded as party having no, concern with the suit such a person does not remain a party to the suit for the purpose of S. 47, notwithstanding whether his name has of has not been removed from the record. It was further held that a person against whom the suit has been dismissed op account of misjoinder is a parson who ought never to have been made a party to the suit at all and since he was not properly impleaded as a party the plain duty of the Court is to strike his name out. It was also held that the position in law would be otherwise in the case where the plaintiff abandons his claim against the defendant and the suit is dismissed as against him. In Thangachami Naicker v. Veerappa Chettiar, AIR. 1937 Mad, 268. It was also held that the position in law would be otherwise in the case where the plaintiff abandons his claim against the defendant and the suit is dismissed as against him. In Thangachami Naicker v. Veerappa Chettiar, AIR. 1937 Mad, 268. following the decision in Abdul Sac v. Sundara Mudaliar it was held that S. 47 would not apply unless the question arises between the parties to the suit in which the decree was passed or their representatives and relates to the execution, satisfaction or discharge of the decree and that the defendant was not a necessary party to the suit within the meaning of Sec. 47 if he is exonerated without his claim being adjudicated upon. In Radha Nath Marity v. Ram Chandra Nayek, AIR. 1954 Cal. 367. it has been held that the dismissal of a suit against a particular party on the ground that he is not and necessary party is not a dismissal within the meaning of the explanation, to, Sec. 47, CPC and that such a dismissal of the suit is really a discharge or dismissal of the party concerned from the suit and ought to, be so construed in law and as that is so he is no longer a party to the suit. In Jujishti panda v. Laxmana Dole, AIR. 1833 Mad. 435. which was a suit to enforce a mortgage, since defendants 2 to 4 set up adverse title in themselves against both the mortgagors and the mortgagee, the plaintiff exonerated them and gave up the suit against them and thereafter proceeded to enter into a compromise with the mortgagors. Following the decision in abdul Sac v. Sundara Mudaliar it was held that before the compromise was decreed these defendants should have been dismissed from the suit and wepei not proper parties to the suit and that therefore s. 47 CPC was inapplicable. It was observed as follows :" It is quite clear that, where parties have been wrongly joined and the suit against them is given up by the plaintiff or upon that ground he exonerates, them, or there is a finding come to that they have been wrongly joined, then the correct procedure is to strike out their names as having been improperly impleaded. On the exoneration or the striking out of the names of persons on the ground of misjoinder, they Cease to be parties to the suit. On the exoneration or the striking out of the names of persons on the ground of misjoinder, they Cease to be parties to the suit. That is quite clear from the judgment of the Full Bench. "it was further held that the decree is shown to have treated these, defendants as persons who had been dismissed) from the suit and not as persons against whom the suit had been dismissed and that from the time of their dismissal they ceased to be parties to the suit because they had been wrongly joined. Tn Suresh Mohan Thakur v. Shamal Mall Bubna, AIR. 1957 Pat. 437. the landlord field an eviction petition agains a tenant under the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947. To this application the alleged sub-lessee from the tenant was also impleaded and eviction was sought against the tenant as well as the alleged sub-lessee. The House Controller passed an order of eviction, against the tenant since the landlord denied any relationship of landlord and tenant as against the alleged sub-lessee. It was stated in the order that he could not seek any action against the alleged sub-lessee under the, House Control act. The landlord thereafter executed the order of eviction. The alleged sub-lessee objected to the execution contending that no order of eviction was passed against him and that the execution petition was barred by res judicata. It was held that where a suit is dismissed against a person on the ground that he was improperly impleaded as party having no concern with the suit, such a person does not remain a party to the suit for the purposes of S. 47, notwithstanding whether his name has or has not been removed from the record. It was further held that even where a Court, instead of directing that a certain party should be struck out as having been improperly impleaded, erroneously made an order dismissing the suit as against them, those persons could not properly be said to have been parties to the suit within the meaning of the explanation to S. 47 CPC. It was therefore held that S. 47 CPC did not apply and that the objection of the alleged sub-lessee under S. 47 CPC was not maintainable. It was therefore held that S. 47 CPC did not apply and that the objection of the alleged sub-lessee under S. 47 CPC was not maintainable. ( 6 ) IN the present case the learned Munsiff while exercising jurisdiction under the Karnataka Rent Control Act had to determine the jurisdictional fact whether the relationship of landlord and tenant existed between the parties to the rent control application. He accordingly held that such relationship existed only between Babulal and hazrabi and that no such relationship existed between Babulal and Guduma. It is for this reason that the HRC application was dismissed as against Guduma. In other words, he came to the conclusion that Guduma was wrongly impleaded in the case. Hence the fact that the application was dismissed and that the Court did not order the name, of Guduma to be struck off as an unnecessary party makes no differnece to the effect of the order for purposes of S. 47 CPC. Hence I would prefer to follow the abovesaid decisions relied on by the respondents and not those relied on by sri Swamy. The executing Court was in error in coming to the conclusion that the dispute between Guduma and Babulal in the execution case is one under the explanation to S. 47 CPC. The lower appellate Court was therefore justified in coming to the conclusion that the dispute was one which must have been dealt with under Or. 21, R. 97 CPC. But it was in error in holding that the order of the learned Munsiff must be considered to be one made under Or. 21, R. 97. The, lower appellate Court should have set aside the order of the trial Court and remanded the case to the executing court for fresh disposal under Or. 21, R. 97 CPC. Its order has now deprived the appellant of her remedy of a suit under Or. 21, R. 103 CPC. ( 7 ) THE executing Court had earlier decided by its order dt. 9-3-1973 that the dispute was one coming under S. 47 CPC and that Or. 21, R. 97, cpc did not apply. It purported to pass the subsequent order under S. 47, cpc exercising its jurisdiction under that section. Hence the appeal filed in the lower appellate, Court was maintainable. The finding of the lower appellate Court in this regard is incorrect. 21, R. 97, cpc did not apply. It purported to pass the subsequent order under S. 47, cpc exercising its jurisdiction under that section. Hence the appeal filed in the lower appellate, Court was maintainable. The finding of the lower appellate Court in this regard is incorrect. ( 8 ) IT is, however, contended by Sri Swamy that the order dt. 9-3-73 was not challenged by the decree-holder, that it has become, conclusive and that the correctness of the order cannot be questioned at this stage. But, as noticed above, the order of the learned Munsiff holding that S. 47 CPC was applicable is clearly erroneous. Hence this is a fit case in which the jurisdiction of this Court under S. 115 CPC ought to be exercised. Accordingly, the order dt. 9-3-1973 is set aside. ( 9 ) SINCE the executing Court erroneously proceeded to decide the dispute purporting to exercise its powers under S. 47 CPC the order cannot ba sustained and has therefore to be set aside. The order of the lower appellate Court is also to be set aside for the reasons stalled above as it will otherwise result in injustice to the appellant. ( 10 ) THE appeal is therefore, allowed. The orders of both the Courts are set aside and the cose is remanded to the executing Court for fresh disposal treating the application as one under Or. 21, R. 97 CPC. ( 11 ) THE executing Court is directed to dispose of the matter expeditiously. ( 12 ) IT is stated that the decree holder has taken possession on 6-8-73 and that tha stay order of this Court was passed only on 8-8-1973. It is open to the appellant to apply to the executing Court under S. 144 CPC for restitution. It is urged by Mr. Krishnaswamy Rao that the decree-holder may be allowed to continue, in possession till the disposal of the application by the execution Court. But the order in pursuance of which he was put in possession has itself been set aside and his continuance in possession will therefore be contrary to law. Hence his request cannot be granted. ( 13 ) PARTIES shall bear their own costs in this appeal. The Court fee paid on the appeal memo shall be refunded to the appellant. --- *** --- .