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Judgment
Sundaram Chetty, J.—This appeal arises out of a suit filed by the plaintiffs (respondents) for the recovery of a sum of Rs. 15,446 alleged to
be due on account of the payment of a decree debt in C. R. No. 55 of 1912 in the Chief Court of Lower Burma, instituted by the Bank of
Rangoon, against the present plaintiff''s firm as 1st defendant and S. A. Firm as the 2nd defendant. The suit is one for contribution, and interest also
is claimed at what is called the Rangoon Nadappu rate, namely, 0-13-6 per cent. per mensem. In paragraph 4 of the plaint it is alleged that in
respect of a joint loan of Rs. 20,000'' contracted by the aforementioned two firms from the Bank of Rangoon, the said decree was obtained. The
defendant in his written statement raised several pleas, one of which is that he was not really a party to the said suit, as there was no S. A. Firm as
a legal entity and no business was carried on under that style by the defendant or by any persons on his behalf. He further stated that the plaintiffs
should strictly prove the truth, the validity and the binding character of the loan and the decree passed thereon. The Lower Court passed a decree
in favour of the plaintiffs.
The way in which the suit proceeded to trial, and the nature of the issues framed clearly show that the plaintiffs wanted to enforce the
defendant''s liability for contribution on the basis of the decree alleged to have been obtained against both the firms. It is curious that the plaint is
silent as to who was really represented by the S.A. Firm mentioned as the 2nd defendant in that suit. We find from the evidence that the
defendant''s late adoptive father Subramaniam Chetty was carrying on the money-lending business as the sole proprietor under the name and style
of S. A. Firm. He died leaving a will, in which he gave authority to his widow to make an adoption. Some time after his death, the present
defendant, while he was a minor, is said to have been adopted by the widow in pursuance of her husband''s authority. There is no doubt that at the
time of the institution of the former suit the present defendant was a minor. This fact is not alleged in the plaint at all, but is indicated in the written
statement. However, the question of his minority arises for consideration in determining his objection that he was not a party at all to the said suit.
The evidence adduced on the plaintiffs'' side is to the effect, that subsequent to the death of Subramaniam Chetty, the business of the S. A. Firm
was slowly wound up and they had to run that business for some time before winding it up. One Chinniah Chettiar is said to have been the
executor appointed under the will of Subramaniam Chetty, and his power-of-attorney agent was Chokkalingam Chettiar (P.W. 2). The loan of Rs.
20,000 referred to in the plaint was borrowed by P.W. 2 as the agent appointed By the executor. He was succeeded by another agent
Murugappa Chettiar who was mentioned in the former suit as the agent of S. A. Firm. The question is whether the present defendant who was then
a minor was really represented at all in the former suit as the 2nd defendant. It is argued that under Order 30, Rule 10, Civil Procedure Code, any
person carrying on business in a name or style other than his own name may be sued in such name or style as if it were a firm name. The rule may
probably justify the suit as against Subramaniam Chettiar or the executor appointed by him, if the words ""any person carrying on business
occurring in the aforesaid Rule 10 should be taken to mean one who is himself actually carrying on business. It is doubtful if those words apply to
one who as the guardian or agent or representative of another person is carrying on the business. Be this as it may, the question that is pertinent to
the present case is, whether the defendant who was really a minor at the time of the institution of that suit could be simply sued in the name of S. A.
Firm, and if so, whether the other requisites laid down in the CPC for a proper representation of a minor by the appointment of a guardian by the
Court need not be fulfilled. There is nothing in Rule 10 of Order 30, Civil Procedure Code, to obviate the necessity of fulfilling the other mandatory
provisions of the Civil Procedure Code. That rule simply justifies the introduction of the assumed name instead of the real name of the defendant,
but does not absolve the plaintiff from his liability to propose a proper guardian, if the defendant represented by such a name is really a minor.
From the available records in this case, we are satisfied that the idea of the present defendant having been a minor at that time never occurred to
the plaintiff in that suit, nor was that fact brought to the notice of the Court that passed the decree. The decree, we find, was one passed on a
compromise. The B diary in that case shows that no petition for leave of the Court to compromise on behalf of the 2nd defendant was ever put in.
That being so, we must hold that there was no representation at all of the present defendant who was then a minor, when the former suit was
instituted or when the compromise decree in that stilt was passed. If one who was a minor at the time of the suit is sought to be made liable on a
decree passed in that suit, it is open to him to plead that that decree was a nullity and might be disregarded by him without instituting a suit to set
aside that decree. This principle has been clearly laid down by the Privy Council in the decision in Khiarajmal v. Daim (1904) L.R. 32 IndAp 23 :
ILR 32 Cal. 296 . If the present"" defendant was really no party to the former suit, it goes without saying that the decree passed in that suit would
be a nullity as against him and therefore would be unenforceable.
Even if the decree as such is not binding on the present defendant, it is open to the plaintiffs in a suit for contribution like this to enforce the
defendant''s liability on the strength of the original joint loan of Rs. 20,000 alleged in paragraph 4 of the plaint on proof of facts necessary for the
establishment of such liability. It is unfortunate that the plaintiffs have omitted to give the necessary particulars of the alleged joint loan for showing
the nature of the same and binding character thereof as against the present defendant. It cannot be said that this suit was based mainly upon the
decree of the Chief Court of Lower Burma, inasmuch as the plaintiffs have also made mention of the original joint loan of Rs. 20,000. The
defendant has also understood the plaint to be one based upon the original loan and the decree, for in paragraph 5 of his written statement he says
that the plaintiff should prove the validity and the binding character of the loan and the decree. As the original loan forming the main basis for the
suit for contribution was not prominently mentioned in the plaint, no specific issue was raised on that point. In fact, that is the main point for
determination in the present suit. Though some evidence was let in on the plaintiffs'' side to show the character of that loan, it seems to us that much
more evidence would have been forthcoming if proper allegations as regards the loan were made in the plaint and those allegations were traversed
by the defendant in his written statement and the necessary issue was framed. Not only was the evidence on the plaintiffs'' side meagre on this
point, but there was utter absence of evidence on the side of the defendant. He himself did not go into the witness box to rebut the plaintiffs'' case,
but his grievance is that the Lower Court refused to grant an adjournment applied for on his behalf, and consequently the evidence which he could
have adduced was not placed before the Court. The trial is certainly defective, as regards the vital question involved in this suit. If the original loan
is proved to be such as would be binding on the present defendant, the present plaintiffs'' claim for contribution may, it is contended, be enforced
on the strength of the alleged payment of the decree debt which is virtually the original debt which was merged in the decree. It is urged on behalf
of the plaintiffs, that the payment of that debt which, according to them, is a joint debt gives them a cause of action to sue the defendant for
contribution. For this position, reliance is placed upon the decision in Abraham Servai v. Raphial Muthirian ILR (1914)Mad. 288 : 27 M.L.J. 746,
but we refrain from expressing any opinion on this question as we are sending down this case to the Lower Court for a fresh trial on the important
issue to be framed and tried in this case. As we have already observed, the suit was decided by the Lower Court missing the main point for
determination. In the interests of justice, we think that the claim should not be allowed to be defeated on mere technicalities.
We therefore think fit to set aside the decree of the Lower Court and remand the suit for fresh trial and disposal, after allowing the plaintiffs an
opportunity to amend the plaint by making the necessary allegations as regards the nature and binding character of the original loan, which
subsequently was sued upon, and by allowing the defendant also to put in an additional written statement to traverse those allegations. The
necessary issue or issues arising from the additional pleadings will have to be framed and tried. With these observations, we remand the suit to the
Lower Court for its restoration to file. Having regard to the indulgence we are showing to the plaintiffs and the success of the appellant on the
question involved in the first issue, we direct the plaintiffs (respondents) to pay one-half of the appellant''s costs in this appeal. The Court-fee paid
on the memorandum of appeal will be refunded to the appellant. Costs of the Lower Court will abide the result.