JANARDHANAN DAMODARA PLAPPALLY Vs. NARAYANAN PLAPPALLY JANARDHANA PLAPPALLY

JUDGEMENT

(1.) DEFENDANTS 3 and 4 have preferred this appeal against the lower court's order dismissing their execution application for realisation of the costs due under the decree in the case from the assets of the plaintiff's sub-tarwad. The 15th defendant who is a member of the sub-tarwad objected to such execution and contended that the plaintiff alone is made liable for the costs awarded under the decree and that such a decree cannot be executed against tarwad properties. The execution court upheld this objection.

(2.) ON behalf of the appellants it is argued that even though the suit was brought by a junior member of the sub-tarwad, it was a representative action on behalf of the sub-tarwad and hence the costs awarded in consequence of a dismissal of the suit must be allowed to be recovered from the plaintiff's sub-tarwad. The function of the execution court is only to enforce the decree as it stands. The question of construing the decree can arise only where there is any ambiguity about its terms. As already stated, the present suit was instituted by the plaintiff as a junior member of his tarwad and it was finally dismissed by the High Court. The decree simply stated that the suit is dismissed with costs and as such it is clear that costs have been awarded as against the plaintiff in this suit. The argument advanced on behalf of the appellants is that even in case of such a decree, the costs can be recovered from the plaintiff's sub-tarwad where it is shown that the plaintiff has instituted the suit on behalf of and for the benefit of the sub-tarwad. In support of such a position, reliance is placed on the rulings in Prabhakara menon v. State (1952 KLT 725) and Narayanan v. Govindan (1955 KLT 78 ). In the first of these cases the question that arose for consideration was about the liability of a tarwad for the court fee due to the State due in respect of a suit instituted by a junior member on behalf of the tarwad which was decreed in part and dismissed in other respects. In deciding the question of the liability for the court fee, the scope of R. 10 of O. XXXIII of the Code of Civil Procedure was considered and it was held that the court fee is leviable as a first charge on the item decreed in favour of the tarwad. It was also held that the other assets of the tarwad were also liable for the court fee because the action brought by the junior member was a representative action brought forward in good faith and for the benefit of the tarwad. The decision in that case cannot be an authority for the proposition that in all cases the costs awarded against a junior member who sued on behalf of a sub-tarwad can be recovered from the tarwad assets. The second case also does not lend any support for such a proposition. In that case, the decree sought to be enforced against the tarwad was a decree against the karanavan as well and it was for that reason that it was held that it could be enforced against the tarwad. The question as to how far a decree for costs as against the junior members of a tarwad could be enforced against the tarwad was specifically considered by a full Bench of the Travancore High Court in Chacko v. Bhaskran (1944 TLR 847)and there it was held that if the decree for costs is only against the plaintiff it cannot be enforced against the tarwad. It was pointed out that'in all representative actions which are conducted by one or more individuals as dominus litis the court must order in specific terms the liability of persons not eo nomine parties to the suit if that were intended and possible. In the absence of any such specific direction, the costs decreed can only be regarded as costs payable by the particular parties on record against whom it was directed". In the present case, it was stated on behalf of the appellant that the contesting defendants had expressly prayed in their written statement that the plaintiff's tarwad must be made liable for the costs of the suit. It was in spite of such a specific prayer urged by the defendants that the plaintiff alone was made liable for the costs of the suit as per the decree dismissing the suit. The natural inference is that the court which passed the decree intended that the plaintiff alone should be made liable for the costs and not his tarwad. The tarwad's liability for such costs which was virtually denied by the court which passed the decree cannot be fastened on the tarwad by the court executing the decree. To do so would be enlarging the scope of the decree, which is a matter clearly beyond the scope of the jurisdiction of the execution court. Thus, in any view of the case, the order of the lower court does not call for any interference.