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Amichand Talakchand Vs. the Collector of Sholapur - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1889)ILR13Bom234
AppellantAmichand Talakchand
RespondentThe Collector of Sholapur
Excerpt:
costs - minor--minor not represented by a next friend or guardian--costs, against such minor's estate--application for leave to site as pauper--civil procedure code (act xiv of 1882)., sections 409, 412, 441, 443, 444--award of costs to government. - - it was, therefore, clearly made without jurisdiction;.....to attach a house, which now belongs to the applicants amichand, in the execution of an order for costs passed by the subordinate judge of sholapur under the following circumstances:one nanchand made an application to be allowed to sue his brother amichand as a pauper. amichand stated that the applicant was a minor. the government pleader, to whom notice had been given, also appeared, and stated that the applicant was not a pauper. two issues were framed by the subordinate judge, via., (1), is the applicant a minor p (2), if a major, is he a pauper? he found on the first issue only, that the applicant was a minor and then passed the following order: 'as the applicant is not represented by a next friend or guardian, i reject this application under sections 441 and 444 of the civil.....
Judgment:

Parsons, J.

1. In this case, the Collector of Sholapur claims the right to attach a house, which now belongs to the applicants Amichand, in the execution of an order for costs passed by the Subordinate Judge of Sholapur under the following circumstances:

One Nanchand made an application to be allowed to sue his brother Amichand as a pauper. Amichand stated that the applicant was a minor. The Government Pleader, to whom notice had been given, also appeared, and stated that the applicant was not a pauper. Two issues were framed by the Subordinate Judge, via., (1), Is the applicant a minor P (2), If a major, is he a pauper? He found on the first issue only, that the applicant was a minor and then passed the following order: 'As the applicant is not represented by a next friend or guardian, I reject this application under Sections 441 and 444 of the Civil Procedure Code. Under the circumstances of the case, I think 'it proper to throw all the costs on the minor's share of the estate.' Nanchand died soon after this order was passed, and his estate vested in his brother Amichand. The Collector of Sholapur then applied to the Court to attach a share of a house which, he alleged, had formed a part of Nanchand's estate. The attachment was resisted by Amichand, but was allowed by the Subordinate Judge. The proceedings have now come before this Court on the application of Amichand for a revision of the order as to costs. We think that the order is dearly illegal. Neither Section 441 nor 442 of the Code gives any authority to a Court to make a minor's estate liable for costs. On the contrary, under Section 442, a Court can only order costs to be paid by the pleader or other person by whom a plaint is presented by, or on behalf of, a minor, without a next friend. Section 444 shows that no order by which a minor is in any way concerned or affected can legally be made without such minor being represented by a next friend or guardian for the suit. Again Government-can only be awarded costs in certain cases where an enquiry has been held under Chapter XXVI. In the present case, no inquiry under that chapter has been held, and no order has been passed such as is contemplated in Sections 109 or 412. The order made, does not even purport to be made under Chapter XXVI. It was, therefore, clearly made without jurisdiction; and, in the exercise of our extraordinary jurisdiction, we annul it, and with it all the proceedings in execution which followed it. All costs in the execution proceedings in the lower Court and in this application to be paid by the Collector.


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