Vemulapatti Krishnayya and Another vs Katraqadda Ramayya and Another

Phillips, J.—This is an appeal against an order as to costs. The appellants are defendant 3 in the suit and the guardian ad litem of defendants

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 defendant 3, the father of defendants 1 and 2 as their guardian. The suit was defended by defendants 1 and 2 through their

guardian ad Iitem, appellant 1. It is contended in the first place that defendant 3 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 call for such an order. As ''regards payment of costs by the guardian ad litem: reliance is placed on a case

Narasimha Rao v. Lakshmipati Ram [1881] 8 Mad. 263, 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 Code, 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 32, 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 82, Rule 11, is a special provision whereby a guardian ad litem who is

not on record may be ordered to pay costs 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 being passed. The appeal is dismissed with

costs.