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Vemulapalli Krishnayya and anr. Vs. Katragadda Ramayya and anr. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in110Ind.Cas.310
AppellantVemulapalli Krishnayya and anr.
RespondentKatragadda Ramayya and anr.
Cases ReferredNarasimha Ran v. Lakshmipati Rau
Excerpt:
civil procedure code (act v of 1908), section 35, order xxxii, rule 11 - costs--suit on mortgage executed by guardian of minor--guardian party on records--court, whether competent to direct guardian personally to pay costs. - .....against an order as to costs. the appellants are the 3rd defendant in the suit and the guardian ad litem of defendants nos. 1 and 2, who have been ordered to pay the costs of the suit on the ground that they have set up false defences. the suit is brought on a mortgage-deed executed by the 3rd defendant, the father of the defendants nog 1 and 2 as their guardian. the suit was defended by defendants nos. 1 and 2 through their guardian ad litem, the 1st appellant. it is contended in the first place that the 3rd defendant is not liable for costs because he is not a necessary party to the suit. the subordinate judge thought that even though he was not a necessary party, still he was a proper party. to prove the execution of the suit document it was certainly necessary to include him in the.....
Judgment:

This is an appeal against an order as to costs. The appellants are the 3rd defendant in the suit and the guardian ad litem of defendants Nos. 1 and 2, who have been ordered to pay the costs of the suit on the ground that they have set up false defences. The suit is brought on a mortgage-deed executed by the 3rd defendant, the father of the defendants Nog 1 and 2 as their guardian. The suit was defended by defendants Nos. 1 and 2 through their guardian ad litem, the 1st appellant. It is contended in the first place that the 3rd defendant is not liable for costs because he is not a necessary party to the suit. The Subordinate Judge thought that even though he was not a necessary party, still he was a proper party. To prove the execution of the suit document it was certainly necessary to include him in the plaint. It is possible that in certain circumstances he might be exonerated from the suit after the facts had been ascertained, but he certainly must be impleaded when the suit is brought. He is, therefore, a proper party and can be made to pay costs if the circumstances eall for such an order. As regards payment of costs by the guardian ad litem, reliance is placed on a case of Narasimha Ran v. Lakshmipati Rau (1) in which it was held that under the Code of Civil Procedure, 1877, the Court had no power to order a guardian ad litem to pay costs, except in accordance with the provisions of Section 458. Whether that decision was right or not under that judge it is unnecessary to consider. Now under the Code of Civil Procedure, 1908, we have Section 35 relating to costs. Under that section there is no reason why a guardian ad litem should not be made to pay if he is a party to the suit. Under Order XXXII, Rule 11, a guardian ad litem who has been removed from the suit may for adequate reasons be ordered to pay costs. This provision does not take away any of the powers given by Section 35 which is applicable to parties on record. Order XXXII, Rule 11 is a special provision whereby a guardian ad litem who is not on record may be ordered to pay coats and cannot be said to restrict the provisions of Section 35 so far as they relate to parties on record. The present order is not objected to on its merits and there is no law which prevents such an order beiDg passed. The appeal is dismissed with costs.


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