KUMAR KRISHNA DUTT Vs. HARI NARAYAN GANGULI

JUDGEMENT

(1.) This is a suit by an attorney to recover from the defendant, who is an infant, the sum of Rs. 446-2-0 for balance of taxed costs in Suit No. 158 of 1912, which was instituted in this Court on the infant s behalf by his mother as next friend for declaration of the infant s title to and possession of certain houses in Calcutta. The plaintiff submits that he is entitled to a charge for the said sum on the said premises, and further that he is entitled in this suit to an order for sale of the premises in default of the payment of the amount claimed.

(2.) The defendant, by his guardian ad litem, Sarat Chandra Chatterjee, has filed a written statement, in which he submits that there can be no decree for costs against the infant defendant personally, nor can such costs be recovered from the infant defendant s estate; that the plaintiff should have proceeded by way of an application in Chambers on summons, or, if referred to a suit such suit ought to have been instituted in the Small Cause Court: he does not admit that Rs. 446-2-0 is due and submits that the costs in Suit No. 158 of 1912 were unreasonably and unnecessarily incurred by the engagement of two Counsel, one of them a senior Counsel, inasmuch as the suit was undefended; and that further the plaintiff is not entitled to the costs (1) of procuring the attendance of two witnesses named in the 8th paragraph of the written statement and (2) of the production of records from the Small Cause Court when certified copies would have been sufficient: he also states that the taxation of the plaintiff s bill in the first suit was ex parte and submits that the infant defendant is not bound thereby.

(3.) No witnesses have been examined on behalf of the defendant, and I hold upon the evidence on behalf of the plaintiff that the Original Suit No. 158 of 1912 was properly instituted-and was for the benefit of the infant; that it also became necessary to execute the decree obtained in that suit and possession of the properties has been recovered on behalf of the infant defendant; that two Counsel including a senior were properly engaged and the costs of procuring the attendance of the witnesses above mentioned and of the production of records were justly incurred; and that the taxation was properly made. The present guardian ad litem attended for the greater part of the time when the bill was under taxation. He did not attend at the final stage, when an undertaking, which had been given on behalf of the next friend to file a warrant of attorney, was not complied with, and no letter of authority was produced by him on the mother s behalf. In fact learned Counsel appearing, instructed by the attorney for the guardian ad litem, stated that he could not press any of the charges as the guardian was not prepared to give any evidence. This suit, I hold, has been properly instituted. The mother had, no doubt, signed a warrant of attorney in Suit No. 158, and she was primarily liable for costs. An application in Chambers for realisation upon the allocatur could only have been made against her in that suit. A suit for declaration of a charge on immoveable property is not maintainable in the Small Cause Court. Besides the question raised in this suit, as to whether immoveable property belonging to an infant can be so charged, is a question of some difficulty, and a fit one for this Court.