Ryves, J.@mdashIn this appeal one technical point of some difficulty has been pressed. Ram Dulare Lal filed a suit in 1914 against Kamta Prasad
and his minor son Jamna Prasad to recover a sum of money in the Court of the Munsif. During the pendency of the suit Ram Dulare Lal had
petitioned that Jamna Prasad, the minor, should be exempted from the array of defendants. This was done. The suit was decreed against Kamta
Prasad alone but it was staled in the decree that Jamna Prasad was exempted, the actual words being ""bari kiya gaya"", and he was to bear his own
costs. In execution of that decree an objection was raised on behalf of Jamna Prasad to the effect that the property which had been attached as
belonging to Kamta Prasad in fact belonged to him, and the execution Court upheld his objection because it appeared that the property stood
recorded in the name of Jamna Prasad. Hence this suit for a declaration that the property was in fact the property of Kamta Prasad. It has been
decreed in both Courts. The technical objection raised is that, inasmuch as Jamna Prasad was a party to the original suit, the objection raised by
him being a party to the decree was final by reason of Section 47 of the CPC and it is not, open, therefore, to the plaintiff to bring the suit. It seems
to me, personally a little difficult to hold that, although Jamna'' Prasad had been expressly excluded from that suit by Ram Dulare Lal, he still must
be held to be a party to that suit and, therefore, a party to the decree. However, there is authority in Data Din v. Nanku 47 Ind. Cas. 864 : 16
A.L.J. 752 which though the fasts are different, nevertheless points in this direction. On the other hand, there is a Fall Bench ruling in Vaddadi
Sannamma v. Koduganti Radhabhayi 43 Ind. Cas. 935 : 41 M. 418 : 22 M.L.T. 532 : 34 M.L.J. 17 : (1918) M.W.N. 23 : 7 L.W. 237pc which
certainly does fully support the contention of the appellant. It seems to me, however, that in this case the findings of fact render the application of
Section 47 of the Code inapplicable. In effect this suit is to get a declaration that the property has been entered in the name of Jamna Prasad as the
outcome of a family conspiracy and the finding is that this is so. Under these circumstances, it seems to us on the facts as found that the suit was
rightly decreed and the appeal must fail with costs including, in this Court, fees on the higher scale.
Walsh, J.
2. I agree.
3. We dismiss this appeal with costs including in this Court fees on the higher scale.