MEGAVARNAM CHETTIAR Vs. KRISHNAN CHETTIAR

JUDGEMENT

(1.) THIS second appeal arises out of a suit instituted by the appellant through his paternal uncle as his next friend, for an injunction restraining respondent, 1, the decree-holder in O.S. No. 15 of 1923 to which the appellant; was a party, from interfering with his possession in pursuance of the decree therein, and the question for determination is whether the lower Courts were. right in dismissing the suit on the ground that the appellant cannot sue for an injunction without asking for as declaration that the decree is not binding on him. The appellant was represented in that suit by his undivided natural father and it is not suggested that his interests were adverse to that of the minor. The appellant was thus duly represented and the suit was keenly contested by the father along with the other defendants whose interests were not conflicting or divergent. The decisions in Sellappa Goundan V/s. Masa Naicken 1924 Mad. 297 and Rashid Unnissa V/s. Muhammad Ismail Khan (1909) 31 All. 572 are not therefore applicable, nor is it alleged in the plaint that the decree in the prior suit was obtained by fraud or collusion or that there was any negligence in conducting the defence in that suit.

(2.) THE decree is not therefore a nullity nor is this a fresh suit on the same cause of action. THE suit is in effect to restrain respondent 1 from executing the decree in the prior suit and it follows that the appellant is bound to ask for a declaration that the decree is not binding on him. But the suit should not have been dismissed on that account and the appellant should have been permitted to amend the plaint and ask for a declaration that the decree is not binding on him. He desires an amendment and is willing to pay the costs incurred by respondent 1 in the lower; appellate Court and here. THE appellant will therefore be permitted to amend the plaint accordingly if he de; posits in this Court Rs. 90 for payment to respondent 1 towards his costs in the lower appellate Court and here on or before 2 March, 1934, and the suit will be remanded to the trial Court for disposal in accordance with law. THE costs of the trial Court will in that event be provided for in the further decree and. otherwise this second appeal will stand-dismissed with costs.