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/s. Alibhai 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.) The case relied on by him, Babu Vrajlal V/s. Alibhai, was a suit filed by a minor plaintiff represented by his next friend which was tried on the Original Side of this Court; it was dismissed on the ground that it was barred by limitation. Counsel on behalf of the defendants thereupon submitted that the costs of the suit should be ordered to be paid by the next friend of the minor plaintiff. Counsel for the plaintiff, on the other hand, contended that the suit being for the benefit of the minor, and there being nothing to show that it was unnecessary or improper, there was no reason to make the next friend liable for the costs of the suit. The question, therefore, that arose for determination was, whether, where a suit is brought by a minor by his next friend and the suit is dismissed, the next friend should ordinarily be directed to pay the costs of the suit, 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 unnecessary and not for the benefit of the minor. A number of authorities, mostly of English Courts, were cited, and Mr. Justice Rangnekar held it established that according to the English practice the rule ordinarily is that the next friend is liable to pay the costs of the successful defendant and that the latter is entitled in a proper case to get them from him.