1. The question for determination in the Civil Miscellaneous Appeal is whether the appellants are entitled to attach and realise the moneys of the 2nd defendant, a minor against whom the appellants obtained decrees for costs.
2. Briefly the facts are: The appellants filed O. S. No. 63 of 1941 against the 2nd defendant and his adoptive mother to set aside the adoption and succeeded in getting a decree. In that suit, the 2nd defendant was represented by his maternal uncle who was appointed as his guardian by the Court. Thereupon the 2nd defendant represented on this occasion by his natural mother as guardian filed A. S. No. 487 of 1947 in the High Court, Madras. The appeal was dismissed with costs. The decree passed in appeal merely stated 'the appeal is dismissed with costs'.
In none of these decrees is it stated that the guardian is to pay the costs. The appellants took out execution for realisation of the costs against the 2nd defendant in E. P. No. 219 of 1953 and attached a sum of Rs. 700/- out of an amount deposited in the District Court of Visakhapatnam, being the compensation payable to the 2nd defendant on account of the death of the father of this minor and also for the loss of the minor's limb in the Ongole railway accident in 1947. Though this attached amount has been brought into the lower court, that court refused to grant a cheque for the said amount to the appellants on the ground that the 2nd defendant who is a minor is not expressly made liable personally for the costs and that therefore it is the guardian to whom the decree-holders should look for realisation of the costs. The plaintiffs had thereupon to file this appeal.
3. Mr. Venkatesam contends that whatever the considerations which may arise in making a next friend of the plaintiff liable for costs when there is a decree against the next friend, the case of a guardian ad litem is on a different footing, for while the next friend automatically constitutes himself by taking steps in the suit, the guardian ad litem is constituted by an order of the court and is not usually a volunteer, and secondly that in the absence of any order under Section 35, C. P. C., that the guardian ad litem has been made liable personally to pay the costs, the minor's property could be proceeded against in execution of a decree for costs.
4. Before dealing with the question whether it is the guardian that has to pay the costs personally decreed against a minor defendant, the position of a next friend or guardian in a suit may be gone into. These persons are not joined in any suit as persons in whom the right to any relief existed or claimed against. In Amar Chand v. Nem Chand, AIR 1942 All 150: ILR (1942) All 144, the reason why no proceedings can be taken by an infant without the assistance of a next friend is stated thus at page 151:
'The next friend himself does not actually become a party to the litigation.'
But it has to be remembered that it is the minor that is the real plaintiff while the next friend is not a party to the suit. Similarly a guardian under Order 32, Sub-rule (3) of Rule 3, C. P. C. is in no sense a party to the suit. These persons who only represent the minor would therefore not be entitled to any costs awarded in a decree or be liable therefore as a party to a suit as such.
The position of a guardian of a minor who files an appeal on behalf of an unsuccessful minor defendant approximates to that of a next friend but nevertheless acts as qua-guardian only, though not appointed by a Court. This guardian also can neither receive nor pay costs merely on the ground that the minor is represented by this person in the appeal. Such being the case the basis of liability of a next friend or a guardian for costs requires to be stated.
It may be observed that in Order XXXII of the Code of Civil Procedure, a provision has been made for ordering the next friend to give security for payment of all costs incurred and likely to be incurred by any defendant whenever it appears to the court that a suit on behalf of a minor by his next friend had been instituted improperly or unreasonably (vide Rule 2-A). In Rule 8 it is provided that a next friend shall not retire without first procuring a fit person to be put in his place and giving security for the costs already incurred, while Rule 9 empowers the court, in cases of removal of a next friend, to make such order as to costs as it thinks fit.
In the case of a guardian also, the retirement or removal is provided for by Rule 11; and the Court may make, in those cases, such order as to costs as it thinks fit. These specific provisions relating to costs in a suit where a minor is represented by a next friend or guardian point that apart from the liability of a party, those who represent the minor could be made liable for costs when there are orders passed to that effect by the court. Section 35 of the Code of Civil Procedure, in so far as it is relevant to determine this question, is as hereunder:
'35(1). Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incident to all suits shall be in the discretion of the Court, and the Court shall have full power to determine by whom or out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid.....'
The discretion vested in the court by the provisions of this section covers also cases of guardian and next friend since the court is empowered to determine by whom the costs are to be paid. But then the liability of a next friend or guardian will not accrue unless the court which passes the decree determines that the costs shall be recovered from the guardian or nest friend. It is not therefore in law possible for the plaintiff to recover costs either from the minor or his next friend or guardian according to his choice, but would be bound to proceed against the estate of the minor defendant in the absence of any order of the court that the guardian or next friend was liable for the costs personally,
5. In the instant case, the decree in favour of the appellants simply is that the appeal is dismissed with costs. No express direction has been given 'making the guardian personally liable for the costs and the absence of it is indicative that costs are payable out of the estate of the minor. It is not also possible to gather that the guardian in filing the appeal A. S. No. 487 of 1947 on behalf of the minor has been acting mala fide nor was such a contention raised in that appeal by the present appellants so as to disentitle them from proceeding against the assets of the minor in execution of their decrees.
6. Mr. Venkatesam relies upon the decision reported in Vinayakarao Pandurangarao v. Sharappa Ramanna, AIR 1944 Bom 100 where costs were awarded to defendant No. 5 in the following terms:
'Defendant 5 to get his costs from the plaintiffs.'
There of the seven plaintiffs, except plaintiff 7, all others were minors represented by their next friend. The 5th defendant sought to recover the costs from the property of the next friend of the minor plaintiffs. The Division Bench held that the properties of the next friend cannot be proceeded against. At page 104 it observed:
'It is never safe for an executing Court to travel far from the actual words of the decree. The rights of the parties depended on the terms of the decree and that matter cannot be left to the interpretation of the executing Court which must deal with the decree as it finds it.'
This decision was only concerned with the case of A next friend. According to it even in the case of a next friend, the order of the court is necessary making him liable for costs. The position of a guardian of a minor stands on a stronger footing. In the latter case, no liability can be attached to a guardian unless in the discretion of the court an order directing recovery of costs from the guardian has been made under Section 35 of the Code of Civil Procedure.
Any argument based on the English practice where the rule ordinarily is that the next friend is liable to pay the costs of the successful defendant and the next friend is entitled in proper cases to get them reimbursed from him is of no guidance; for, even where the next friend is concerned, the executing court is powerless to go behind the decree, and also [he decree-holders are not empowered to execute the decree for costs against persons who arc not parties to the decree. It is not as though a court has not power to order the costs to come out of the estate of the infant and when an order in the decree as to costs gives no indication that it is the guardian that has to pay, as in the instant case, it would be legitimate to conclude that the court which passed the decree, did not exercise the general discretion given to it under Section 35 of the Code of Civil Procedure.
7. In this view it cannot but be held that the lower court wrongly refused to issue the cheque to the appellants. Its conclusion that the guardian of a minor is personally liable for costs of the opposite side unless it is expressly provided in the decree that the minor is personally liable, is not supported by any authority or by statutory provisions governing the award of costs in litigation. The learned Subordinate Judge is clearly in error in dismissing the petition and he is, therefore, directed to issue the cheque as prayed for by the petitioners before him.
8. In the result, the appeal is allowed with costs throughout.