MUTHUKARUPPA ETHANDAR Vs. APPAVOO NADAR

JUDGEMENT

(1.) The case for the appellants is completely devoid of merit, but questions of law have been raised and it is necessary to consider them. The appellants and respondent 4 are the managers of the communal lands of the village of Natarajapuram (also known by the name of Ethandarpatti) in the Trichinopoly Taluq. They sued in the Court of the District Munsif of Trichinopoly for a declaration that the deoree obtained in Order Section No. 82 of 1929 was not binding upon them or upon the other ryots of this village. In that suit defendants 1 to 4, as the representatives of the village of Arasankudi, sued four ryots of the village of Natarajapuram, as the representatives of that village, to recover a sum of Rs. 1667-4-0 which they claimed was due to the villagers of Arasankudi by the villagers of Natarajapuram in respect of the construction of a road connecting the two villages with the main road. Both the villages had asked the Taluk Board authorities to construct the road and promised that they would contribute one-third of the cost, if the Taluk Board would bear the rest. It was afterwards arranged that the two villages should contribute a total sum of Rs. 4000 which was to be borne by them equally. At a later stage, it was agreed between the villagers of Arasankudi and the villagers of Natarajapuram that the Arasankudi villagers should pay Rs. 2250 of the Rs. 4000 and the villagers of Natarajapuram Rs. 1750. The villagers of Arasankudi paid the full amount and the villagers of Natarajapuram reimbursed them to the extent of Rs. 500 but they failed to pay the balance, and in consequence defendants 1 to 4, suing on behalf of all the villagers of Arasankudi, instituted the suit to recover the balance.

(2.) The District Munsif took the plaint on his file on 20 February 1929 and numbered the suit as No. 82 of 1929. "With the plaint were filed two applications, one for an order permitting the plaintiffs to sue on behalf of the villagers of Arasankudi and the other for an order allowing them to sue the defendants as the representatives of the village of Natarajapuram. Having numbered the plaint, the District Munsif directed that notice should issue to the defendants and that a general notification should be published in the District Gazette. The defendants were served, and the notification was duly published. After this had been done, namely, on 19 April 1929, the District Munsif granted leave to the plaintiffs, as representing Arasankudi, to sue the defendants as representing Natarajapuram. In his order he pointed out that there was no opposition to the application. He also directed that as defendant 3 was absent the case should proceed against him exparte. Subsequently, defendant 3 filed an application for an order setting aside the exparte order which was passed against him on 19 April 1929 and asked for permission to file a written statement. This application was granted. All the defendants filed written statements. On 2 April, 1981 the plaintiffs and defendants 1, 2 and 4, filed in Court a statement agreeing that a decree for Rs. 1250 and costs should be passed against the communal properties of the village of Nataraja-puram with full liberty to the plaintiffs to proceed in execution against these properties. Defendant 3 did not join in this application. In conjunction with the plaintiffs, he filed a memorandum stating that he was not willing to continue on the record as one of the representatives of the village of Nataraja-puram and that the plaintiffs consented to the suit being proceeded with against defendants 1, 2 and 4 as the representa-tives of Natarajapuram. In these circumstances he asked that his name be removed from the suit. On 7 April the District Munsif passed a decree in accordance with the terms agreed upon by the parties and set out in these two statements. The suit out of which this appeal arises was filed by the appellants on 4 January 1933 in accordance with the provisions of Order 21, Rule 68, Civil P.C. The decree-holders in Order Section No. 82 of 1929 had attached the communal lands of Natarajapuram in execution of their decree and the appellants objection to the attachment had been overruled. The District Munsif decreed the suit On the following grounds, (1) In the earlier suit the requirements of Order 1, Rule 8 had not been complied with and (2) as defendant 3 had disappeared from that suit the Court had no power to pass a decree against the three remaining defendants as the representatives of Natarajapuram without an order expressly directing the suit to proceed against them. On appeal the decree of the District Munsif was confirmed. The defendants then appealed to this Court. Somayya J., held that the decree which had been passed in the former suit was binding upon the plaintiffs and consequently dismissed their suit with costs. This appeal is from the judgment of the learned Judge under Clause 15, Letters Patent.

(3.) As before Somayya J., the appellants have raised four contentions. The first two are the contentions which the District Munsif and the Subordinate Judge accepted. They also say that the Court has no power to pass an order allowing persons to be sued in a representative capacity when the claim is upon a mere debt. Further they say that the decree in the former suit is not binding upon them because the defendants had no power to enter into a compromise. Order 1, Rule 8 reads as follows: (1) Where there are numerous persons having the same interest in one suit, one or more of such persons may, with the permission of the Court, sue or be sued or may defend, in such suit, on behalf of or for the benefit of all persons so interested. But the Court shall in such case give, at the plaintiff's expense, notice of the institution of the suit to all such persons either by personal service or, where from the number of persons or any other cause such service is not reasonably practicable, by public advertisement, as the Court in each case may direct. (2) Any person on whose behalf or for whose benefit a suit is instituted or defended under Sub-rule (1) may apply to the Court to be made a party to such suit.