HARISCHANDRA KHANDERAO KOTHARE Vs. A S CRAIG

JUDGEMENT

(1.) THIS is a chamber summons taken out by the defendants for setting aside an ex parte order made by Mr. Justice Kania on July 28, 1941,. and for setting aside the service of the writ of summons effected pursuant to the said Judge's order upon the defendants as representing all other members of the Great Indian Peninsula Railway Employees' Mutual Benefit Society.

(2.) THE suit is filed by the plaintiff, who is an attorney of this Court, for damages for wrongful termination of his services by the Great Indian Peninsula Railway Employees' Mutual Benefit Society. THE object of this society, as apparent from the rules which have been put in, is to provide any member of the society with legal assistance for his defence in the event of his being prosecuted for an offence or offences, under the Indian Railways Act or the Indian Penal Code, alleged to have been committed by him and arising out of and in the discharge of his duties, or of actions believed to be within the scope of his duties as an employee of the railway.

(3.) MR. Engineer for the plaintiff urges that in a representative suit filed under O. I, Rule 8, no personal decree can be passed except against the defendants who are on the record of the suit eo nomine. He points out that there are funds of the society, that there is a trustee of the society, and that if the ? decree goes in favour of the plaintiff, the decree would be against the defendants on the record personally, and as regards the other members who are represented by defendants Nos. 1 and 2, it would be confined to their interest in the funds of the society. He further urges that there can be no question that the interests of all the members are common because the employment was by the society and the dismissal also was by the society. It is not the case here that certain members of the society employed the plaintiff and some others terminated his services so that different defences might be available to different members of the society. MR. Coltman, on the other hand, on the strength of the decisions in England, to which I shall presently refer, contends that in a representative suit if a personal decree is asked for, that decree is capable of being executed not only against the defendants on the record eo nomine but also against all the persons whom the defendants represent. If that were so, then if a decree were to be passed in this suit, members of the society who were not members at the time the plaintiff was employed and also persons who ceased to be members when the plaintiffs services were terminated would be liable to pay the decretal amount. The question, therefore, that arises for determination is what is the nature of the decree in a representative suit ? Sir Dinshah Mulla in his commentary on the Civil Procedure Code states that the general rule of law is that in suits where one person is allowed to represent others as defendant in a representative capacity, any decree passed binds those others only with respect to the property of those others which he can in law represent, and although the party on record eo nomine may be made personally liable, no personal decree can be passed against the others. I am afraid that this proposition of law is not borne out by authorities both in this country and in England. The decision on which Sir Dinshah Mulla relies for this proposition of law is the decision in Sahib Thambi v. Hamid (1911) I.L.R. 36 Mad. 414, and it is true that that1 particular decision does lay down the rule of law enunciated by Sir Dinshah Mulla. But the Court in that case was not called upon to construe O. I, Rule 8, at all, and its observations on the effect of a decree passed under the provisions of that rule are purely obiter. In the Madras case the plaintiff obtained a decree against the firm of M. L. v. Sahib Malim & Co. in the Supreme Court of Singapore. The only partner who was served and who defended the suit -was defendant No.3. The plaintiff then filed a suit, based on the judgment of the Singapore Court against defendant No.3, against defendants Nos. 1 and 2 as representatives of a deceased partner and against defendant No.4, another partner of the firm. The relief asked against them was personal and not restricted to partnership property in their hands. The Court held that the partners who were not served in the Singapore suit were not personally liable but only the partnership property, if any, in their hands was liable for the decree of the Singapore Court.