Sajedur Raj vs Baidya Nath Deb, and Radha Raman Dhur

Macpherson, J.—Does not sec. 32 imply that they are not parties? This refers only to conduct of the suit. If the person who represents them under sec. 30, mismanages the suit, the others can come in under sec. 32, as in the case of a fraudulent compromise of a suit the guardian of a minor or other person interested in the minor, may apply for appointment of another guardian ad litem. If these 42 persons are not to be regarded as parties to the suit, they have no locus standi to apply for amendment of the decree. The decree is not at variance with the judgment. These persons were named in the petition of appeal, and the appeal was decreed in respect of all those against whom the appeal WAS filed and the decree simply mentioned the fact.

Macpherson, J.

This is an application to bring a decree into conformity with the judgment. It appears that two persons Baidya Nath Das and Radha Raman Dhur brought a suit on behalf of themselves and some 42 other persons said to have been interested in obtaining certain reliefs in the worship of an idol to set aside an alienation made by the Mohunt and for his dismissal. Out of these persons, it is said, that some 36 intimated that they were willing that the suit should be carried on by the plaintiffs and the suit then proceeded at the instance of the two plaintiffs and culminated in a decree in their favour.

The purchaser of the property said to have been alienated, appealed. to this Court with the result that the whole decree was set aside, this Court holding that the suit was misconceived and was not one which came under sec. 30, C. P. C. The Judgment of this Court concluded with the words :--" The appeal is allowed with costs." In the decree as drawn up and signed, the names of the two plaintiffs and of the 42 other persons are set out as respondents and the decree directs that costs amounting to Rs. 1,171 and odd annas be paid by the plaintiffs respondents. Under that decree as it stands, the 42 persons on whose behalf the plaintiffs sued are jointly and severally liable for the whole amount. It is contended in opposition to this application, that this is really a case for a review of judgment and not for an amendment of decree, as the decree drawn is consistent with the judgment; the persons on whose behalf the plaintiffs sued, being really and properly parties to the suit, and it is also contended, that if they are not parties to the suit, they are not affected by the decree, even if it purports to bind them, and there is, therefore, no locus standi for this application.

We are of opinion that the persons, on whose behalf the suits were instituted, but who did not themselves join as plaintiffs in the suit, were not parties to the suit in the sense that they had any voice or control in the conduct of it, or that they could be made liable for costs. Possibly the effect of sec. 30 might be that they would be bound by the decision, but it would not follow from that that they were parties to the suit, and sec. 32 of the Code distinctly provides that any person on whose behalf a suit is instituted under sec. 30 may apply to the Court to be made a party. That indicates that until he is formally joined as a party, he is not a party simply because a suit may have been instituted by another person for their joint benefit. Nor does it appear that in the appeal which was preferred to this Court, these persons were treated as party respondents. The memorandum of appeal shows that the appeal was directed against plaintiffs 1 and 2 who had instituted the suit for themselves and on behalf of the persons whose names were given. It may safely be said that it was not the intention of this Court to make the persons other than the actual plaintiffs in the suit liable for the costs and the entry of the names of the 42 persons in the decree as plaintiffs respondents was clearly an error.

Their names might properly be entered as persons interested under sec. 30, but should not have been entered in the category of party respondents.

We think, therefore, that this decree is not in conformity with the judgment and should be amended by limiting the order as to the payment of costs to plaintiffs 1 and 2 only, and not to all the persons entered in that decree as plaintiffs-respondents. As regards the objection that, if the petitioners were not parties to the suit, they had no right to come here and ask for amendment of the decree, we think that as the decree makes them liable jointly and severally for the amount of costs, they had a right to come here and ask that it should be amended. The rule is made absolute in the terms above stated.