Walter Schwabe, K.C., C.J.
1. The Chief Justice This is an action by two executors under a will which appointed twelve executors. The will has been admitted to probate. Three executors have been removed and there are at present nine. Seven have given a power of attorney to the other two, which in effect authorises the two to execute all the duties of the executors in collecting and managing the estate: but, in my view, that does not authorise those two executors to sue on behalf of the estate in their own names. It might have been sufficient authority to these two to take proceedings in the name of the nine. But that is a point which must turn on the construction of the power of attorney and it is unnecessary to decide it here, because it is not what has been done. Therefore, in my view, this action is wrongfully conceived and must fail for non-joinder of necessary parties.
2. Under Section 99 of the Code of Civil Procedure no decree is to be reversed on account of any misjoinder of parties not affecting the merits of the case or of the jurisdiction of the Court, and it has been held, how far correctly I am not prepared at present to say, that 'misjoinder'in that section includes non-joinder. See Yakkanath Eacharanunni Valia Kaimal v. Manekkat Vasunni Elaya Kaimal I.L.R.(1909) Mad. 436. But if a defendant is sued by one only of two persons with whom he has contracted or by one only of two persons who have a joint cause of action against him, he has a right to have the action dismissed unless the other is joined. This is not merely technical. It may be of great importance, because, as was pointed out in Ramsebuk v. Ramlal Koondoo I.L.R(1881) Cal. 815, he ought to be in a position to recover his costs if he succeeds as against all the parties. If there are many executors some of whom are solvent and some insolvent it might be to the prejudice of the person against whom the estate has some claim that particular executors should be able to sue him with the result Chat, if he succeeded and got the suit dismissed with costs, he might find no one against whom he can execute his decree for costs, and so it is correctly stated in Woodroffe and Amir Ali's Code of Civil Procedure, Second Edition, at page 543, that if the defendant takes the objection at a proper time it is his right to have all the proper persons joined as plaintiffs, and if, after the objection has been raised, the plaintiff proceeds with the suit without taking steps to add the person or persons whose non-joinder has been objected to, and the Court finds that the objection is well founded, the suit must be dismissed. In this case the objection was taken at the earliest stage in the written statement. It was argued before the District Munsif and before the District Judge, and both those tribunals held, and in. my view wrongly, that these two executors by reason of the power of attorney could sue in their own names without joining the other. No application was made to either of those Courts to amend the plaint by joining the other executors but, probably if an application had been made to the District Munsif he would have permitted such amendment on terms as to costs. The position of the District Judge might have been more difficult, although there too the position is not so difficult as it is in the High Court on second appeal, where one is conscious of the working of the rule against appeals on questions of fact, because if we allow the amendment now, it might put the defendants in a worse position than they would have been if the amendment had been allowed in the first instance: and that may be the defendant objection to further plaintiffs being added at this stage even if the consent of these proposed plaintiffs were obtained. I think there is no course open to us but to dismiss the suit with costs of both defendants here and in the Courts below two sets. The appeal will be allowed with two sets of costs one to the appellant and the other to the second respondent, payable by the first respondent. The first respondent's memorandum of objections must be dismissed and the second respondent's memo of objections must be allowed both without costs.
3. I agree and have nothing to add.