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Madras High Court
Govindarajulu Naidu vs Chinnathambi Padayachi And Ors. on 18 November, 1927
Equivalent citations: AIR 1928 Mad 1270


1. Though the question of paramount title was excluded from consideration in the mortgage suit, defendants 2 to 4 could not be struck off. The plaintiff impleaded them on the ground that they were lessees of the mortgagor. It does not appear that this allegation of the plaintiff was ever abandoned. There-fore, defendants 2 to 4 had to continue and did continue as parties to the suit. V. Sannamma v. K. Radhabhayi [1918] 41 Mad. 418 nor Krishnappa Mudaly v. Periyaswamy Mudaly [1917] 40 Mad. 964 is on all fours with the facts of this case. We think the claim of the respondents under Rule 100, Order 21, Civil P.C. ought to have been tried under Section 47,. Civil P.C. and the plaintiff who wants an enquiry into the title under Section 47, Civil P.C., is entitled to it. We allow the appeal. The respondents will pay the appellant’s costs in this and the lower appellate Court. The costs in the first Court will abide the result.

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