BHICOOBAI Vs. HARIBA RAGHUJI

JUDGEMENT

(1.) This is an action in effect to recover out of the immoveable property of the Fulmali caste certain sums of money amounting in all to Rs. 7234 which were paid by the plaintiff in order to set aside a judicial sale of this immoveable property and to satisfy certain other attachments which had been made against this property in suit No. 559 of 1911. The defendants other than defendants 11 and 12 represent the caste under a representation order made in this action under 0rder I, Rule 8.

(2.) The defence in effect is that this judicial sale and the warrants for attachment were all made per incuriam without jurisdiction and are not binding on the caste and that even if they are binding, the plaintiff is not entitled to any charge on the property and is indeed without any remedy, for it is contended that as he is not entitled to a personal decree against all the members of the caste, he cannot by attachments get at the caste property. The immoveable property in question is the Caste Meeting House or Sabhagraha in Bombay. Beyond that it does not appear that the caste has any other property, immoveable or moveable. The facts are not really in dispute bub must be stated in order to understand how the numerous technical points of law and practice arise. In particular the point arises as to what relief can be obtained by a plaintiff in an action which the defendants are defending under a representation order.

(3.) The material facts are as follows:-The previous action No. 559 of 1911 was a representative action brought by one Shankar on behalf of himself and all other members of the Fulmali caste against two other members, for an account of certain moneys of the caste received by such two members and for further relief. This action had been authorised by a Resolution of the 6th November 1910 of the caste which will be found on pp. 79 and 80 of the appeal paper book in the suit. It is also clear from Mr. Justice Heaton s judgment in the same case that Shankar was authorized so to sue (see p. 238 of the appeal paper book where issue " No. 4" appears to be a misprint for issue No. 8). By the decree of the 2nd July 1912 the suit was dismissed by Mr. Justice Heaton and the Court ordered " that the plaintiff do pay to the defendants their costs of this suit" except of two full days hearing on issue 4 and " that the defendant do pay to the plaintiff hie costs of two full days " and that the one set of costs be set off against the other. Shankar appealed and by the appeal decree of the 17th January 1913, after describing Shankar as the appellant, the appellate Court confirmed Mr. Justice Heaton s decree and ordered that " the appellant do pay to the respondents their costs of this appeal." The members of the appellate Court were my Lord the Chief Justice and Mr. Justice Chandavarkar.