VINAYAKRAO PANDURANGRAO DESAI Vs. SHARANAPPA RAMANNA METRI

JUDGEMENT

(1.) THIS appeal arises out of proceedings in execution of a decree in a suit filed by seven plaintiffs all of whom, except plaintiff No.7, were minors represented by their next friend. The suit was dismissed and the decree, as it stood after the appeal to this Court, contained these words : "defendant No.9 to get his costs from the plaintiffs."

(2.) DEFENDANT No.5, the present appellant, filed darkhast No.590 of 1940 for his costs and sought to recover them from the property of the next friend of the minor-plaintiffs. The Court asked him to show how the darkhast was tenable against the property of the next friend. DEFENDANT No.5 relied on Babu Vrajlal v. Alibhai (1934) 36 Bom. L.R. 1201 in support of his contention that the next friend was personally liable for the costs. The Court remarked : I have gone through the judgment in that case but I find that the next friend was directed by the Court to pay the costs of the defendant. The principle that the next friend is ordinarily liable to pay the costs applies and comes into operation only when there is such direction in the judgment or decree. As there was no such direction in the judgment or the decree in this case, the learned Judge held that the darkhast was not tenable against the property of the next friend and ordered the issue of a warrant under Order XXI, Rule 43, Civil Procedure Code, 1908, against the moveables of the plaintiffs. DEFENDANT No.5 has appealed.

(3.) IN Bai Porebai v. Devji Meghji (1898) I.L.R. 23 Bom. 100 the question that arose for consideration was whether a minor female plaintiff suing by her next friend can, and ought to, be ordered to give security for the costs before allowing her to proceed with the suit. It was held that except in exceptional cases neither the infant female nor the next friend should be required to give security for costs. Farran C.J. remarked (p. 101) : Doubtless it is not intended that an infant party to a suit should personally obey such orders. It is evident from the provisions of Chapter XXXI of the Code that it is intended that his next friend or guardian should obey the orders of the Court on his behalf. Hence in construing the Code we cannot read an exception as to infants into its provisions generally, but rather a proviso that orders given to an infant may be obeyed for such infant by his next friend or guardian,....