B S PRASANNA KUMAR Vs. PINAKI BASAVARADHYA

JUDGEMENT

(1.) This appeal arises out of proceedings in execution of a decree in a suit filed by three minors represented by their next friend one Basavaradhya, shown as next friend of the minors in this appeal also. The suit was dismissed with costs. The decree drawn up says:

(2.) Legal Representatives of the second defendant, who are the appellants in this appeal, filed Execution case No. 93 of 1966 on the file of the Principal Civil Judge, Bangalore, for recovery of costs awarded in the decree personally from Basavaradhya, the next friend who had filed the suit on behalf of the minors. As there was no such direction to recover personally from the next friend, the execution court dismissed the execution petition as against Basavaradhya. Aggrieved by this order, the legal representatives of the second defendant have filed this appeal.

(3.) Mr. M. L. Venkatanarasimhiah, the learned counsel for the appellants, ssubmitted that the costs of the suit should be ordered to be paid by the next friend of the minor plaintiffs. His contention was that ordinarily the next friend of the minor-plaintiffs must be made liable to pay the costs. Even though the decree is not to that effect, he contended that the executing court could still have power to direct the next friend to pay the costs. The question, therefore that arises for determination is whether where a suit is brought by minors by their next friend and the suit is dismissed, the next friend should ordinarily be directed to pay the costs of the suit even though there is no such direction in the decree or whether the next friend should be ordered to pay the costs only if the court holds that the suit was not a proper suit or was not one brought to protect the interests of the minors and specifically directs the costs should be paid personally by the next friend. Sub-section (1) of S. 35 C.P.C. provides: