- (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 realization of the costs against the 2nd defendant in E. P. No. 219 of 1953 and attached a sum of Rs. 700.00 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 minors 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 realization 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 adlitem 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 minors property could be proceeded against in execution of a decree for costs.