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Mulchand Jivraj Vs. D. Low - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberO.C.J. Suit No. 406 of 1936
Judge
Reported inAIR1939Bom350; (1939)41BOMLR521
AppellantMulchand Jivraj
RespondentD. Low
Excerpt:
costs - minor party-decree silent as to liability of next friend to pay costs-minor liable to pay costs.;where the plaintiff is a minor and his suit is dismissed with costs, the court, if it intends the next friend of the minor to pay the costs, should give an express direction to that effect. in the absence of such direction, the estate of the minor plaintiff is liable to satisfy the costs awarded. - - 104) :as an infant was not liable for costs, it might well be argued that the judgment as delivered and as recorded in the associate's certificate amounted to a direction that the costs should be paid [to the defendant]by the [plaintiff's] next friend; but it was a better and safer practice that the judge, when delivering judgment, should be asked to deal in express terms with any..........effect. in the absence of such direction the decree must mean what it says and the estate of the minor plaintiff must remain liable to satisfy the costs.15. summons dismissed with costs. costs to be paid by the present next friend. counsel certified.
Judgment:

Engineer, J.

1. This is a chamber summons taken out on behalf of the minor plaintiff for an order that the Sheriff of Bombay do refund to him certain moneys paid to the Sheriff under protest in order to raise an attachment brought on certain goods belonging to the minor plaintiff. The plaintiff's contention is that the decree is not one which can be executed against him.

2. The suit was filed on behalf of the minor plaintiff by his next friend Umedmal Genaji. The suit was dismissed with costs. The decree as drawn up says :-' the plaintiff's suit is dismissed and the plaintiff do pay to the defendants their costs of the suit when taxed and noted in the margin hereof.' In execution of this decree for costs the defendants got attached certain goods belonging to the minor plaintiff in the business which he now carries on through a ' munim' who is other than the original next friend. The present application is made on behalf of the plaintiff by his present munim as his new next friend.

3. It is contended on behalf of the defendants that the summons is misconceived as the application cannot be made on behalf of the plaintiff by anybody else except the original next friend. I cannot accept that submission. The suit is at an end and in any event it certainly cannot be expected that the original next friend should come forward and say that the estate of the minor plaintiff is not liable, but he himself is personally liable. The present application has nothing to do with the suit itself and the present next friend has made an affidavit stating that he has no interest directly or indirectly adverse to the minor applicant. I do not see any reason why the present application cannot be made by the new next friend.

4. On the merits of the summons, the contention on behalf of the plaintiff is that whoever might be liable for the costs of the defendants, the decree taken in connection with the judgment shows that the minor is not liable. In the affidavit in support of the summons the contention is put in these terms :

The remedy of the defendants for realization of their costs is against the said Umedmal Genaji the next friend who in law is liable to the defendants for payment of the costs and not the said Mulchand Jivraj nor his properties.

5. The affidavit alleges that the conduct of Umedmal Genaji in the suit was improper, that his evidence was disbelieved by the learned Judge who tried the suit and that Umedmal Genaji is not even entitled to look to the minor's properties in respect of his liability for costs of the defendants,

6. The question is really one of construction of the decree. There is no doubt that a minor cannot be made personally liable for the costs of the suit. It is equally clear that where the plaintiff's suit is dismissed with costs, the Court generally directs the next friend to pay the costs either without prejudice to his right to have recourse to the estate of the minor or without having such recourse if the next friend's conduct has not been proper. In this case the order does not say that the next friend should pay the costs. All that the decree says is that the plaintiff do pay the costs; of the defendants.

7. The argument for the plaintiff falls into two parts. First it is contended that in a decree of this kind it is the next friend who is liable to pay the costs, and, secondly, that in any event even if the next friend cannot be held liable on the construction of the decree as it stands, the minor cannot be liable and that the decree so far as the payment of costs is concerned is abortive.

8. Two decisions were cited in support of the first submission. They were Turner v. Turner (1726) 2 Str. 708 and Slaughter v. Talbott (1739) Willes 190. In those cases the order simply was that the action be dismissed with costs, and it was held that under a judgment in that form proceedings could be taken against the next friend for recovering the costs. In those cases there was no express direction that the plaintiff should pay the costs, and the next friend was considered liable to satisfy a decree in that form. Subsequent decisions; however show the necessity of the decree providing expressly for payment of the costs by the next friend.

9. In Harrison v. O'Donnell [1919] W.N. 104 judgment was entered for the defendant with costs, and an application was subsequently made to amend the certificate of judgment by adding in the judgment the words that the next friend should pay the costs. In delivering the judgment allowing the amendment the learned Judge observed as follows (p. 104) :

As an infant was not liable for costs, it might well be argued that the judgment as delivered and as recorded in the associate's certificate amounted to a direction that the costs should be paid [to the defendant]by the [plaintiff's] next friend; but it was a better and safer practice that the judge, when delivering judgment, should be asked to deal in express terms with any question that might arise as to the liability of the next friend in reference to costs.

10. It will be noticed that in this case the judgment had not been perfected before the application for amendment was made. In a similar case, Hulberl v. Thurston [1931] W.N. 171, an application for insertion of the words that the next friend should pay the costs was refused because the judgment had been drawn up and perfected. In In re Pictou v. Pictou [1931] W.N. 254 as the order was not drawn up, an application to have the order amended so as to make the next friend pay costs without prejudice to his right against the minor's estate was allowed. In making the order the learned Judge observed that he did not intend to make an abortive order. It is these words which are relied on on behalf of the plaintiff in support of the submission that unless the order specifically directs the costs to come out of the estate of the minor, an order cannot be executed. I do not think that the submission is correct. One does not know what the position was in that case. It may be that the minor had admittedly no property and the order would therefore be abortive. In any case there is high authority for the proposition that an order can be made simply in terms that the minor plaintiff do pay the costs. I will refer to those authorities presently.

11. In the case of Brijessuree Dossia v. Kishore Doss (1876) 25 W.R. 316 where the decree did not in express terms say that the next friend was to pay the costs, execution proceedings taken against the next friend were set aside. It was pointed out that the rights of the parties depended upon the terms of the decree.

12. It was argued on behalf of the plaintiff that in this suit the decree does not make it quite clear that the learned Judge intended that the costs of the defendants were to be recovered out of the estate of the minor plaintiff, and that therefore the excution proceedings taken cannot be sustained. In my opinion the decree is quite clear and it directs the minor plaintiff to pay the defendants' costs. Undoubtedly such a decree does not entail any personal liability on the minor, but there is no reason why under a decree in this form the defendants cannot proceed against the estate of the minor as they have done. It is not necessary that the decree should state in so many words that the costs of the successful party are to be taken out of the estate of the minor losing party.

13. The Court of Appeal in the case of Slingsby v. The Attorney General (1916) 32 T.L.R. 364 made an order directing the infant and his guardian to pay the coats both in the Court of Appeal and in the Court below. The case went up to the House of Lords and the decision of the Appeal Court was confirmed. But as regards the costs of the appeal to the House of Lords it was ordered that the next friend should pay the costs. Again in Elumalai Naicker v. Kuppammal I.L.R. (1929) Mad. 716 the Court of Appeal made an order allowing the successful respondents to recover their costs from the next friend or the minor appellant as they chose.

14. I cannot in these proceedings go into the alleged misconduct of the next friend in the suit and conjecture whether the Court did or did not mean that the minor's estate should be liable for the costs. I can only go by the decree as it stands. There is nothing in the judgment itself which militates against the construction which I put on the decree. The judgment is that the suit is dismissed with costs. That is the form of the judgment usually adopted whether the plaintiff is an adult or a minor. But where the plaintiff is a minor, if the Court intends the next friend to pay the costs, there should, in my opinion, be an express direction to that effect. In the absence of such direction the decree must mean what it says and the estate of the minor plaintiff must remain liable to satisfy the costs.

15. Summons dismissed with costs. Costs to be paid by the present next friend. Counsel certified.


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