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Present: De Sampayo and Schneider JJ.
PHILIPPU et al. v. GNAPRAKASAM.
107—D. C. (Inty.) Jaffna, 15,367.
Judgment in favour of three plaintiffs for Rs. 450—Compromise by oneplaintiff to accept Rs. 350 in full satisfaction—Is compromisebinding on other plaintiffs f—Payment to one plaintiff of morethan his share—Right of co-plaintiff to move in this action to bringmoneyoverpaid into Court—Separateactionnecessary—Civil
Procedure Code, s. 344.
Three plaintiffsbroughtan action against defendants claiming
Rs. 725.Bjconsent, decree was enteredfor Rs.450. The first
and third plaintiffs (appellants) left the district, and the secondplaintiff entered into another compromise with defendants agreeingto accept Rb. 350 instead of Rs. 450, and actually received Rs. 280.'Hie first "and third plaintiffs moved that second plaintiff be orderedto bringthemoney received by him intoCourt; and, farther, to
show cause whywritofexecution shouldnot issueagainst the
defendants for the entire balance.
Held, thatthe appellants must bring aseparateaction against
the second plaintiff for the money received over and above hisshare, and thattheexparte compromisemade bythe second
plaintiff was not binding on the other plaintiffs.
Section 344 oftheCivil Procedure Codedoes notenable the
Court to adjudicate on claims between the plaintiffs inter se.
facts appear from the judgment.
Ranawaka, for appellants.
J. Joseph, for respondent.
October 19, 1922. De Sampayo J.—
The first and third plaintiffs, who appeal, would appear to havesome sort of grievance. They have certainly misconceived theirremedy. Three plaintiffs brought this action against two defend-ants, claiming some Rs. 725 odd as due to them from the defendants
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1988. on an agreement, but a decree by consent was entered for Rs. 450.
There is no dispute between the plaintiffs so far, but it would seemJ.that the first and third plaintiffs thereafter left Jaffna and went
Phiiippu v on 601116 business of their own to another part of the country,Gnapra- leaving the second plaintiff to carry on the litigation. What thebttaam second plaintiff did was to enter into another compromise, andagreed to accept Rs. 350 instead of Rs« 450, and he actually receivedRs. 260 out of the lesser sum so agreed upon. This payment ofR*. 280 has since been recorded as satisfied. The first and thirdplaintiffs now came into Court and applied that the second plaintiffbe ordert1 to bring into Court the Rs. 280; and, further, to showcause why writ of execution should not issue against the defendantsfor the entire balance.
The first and third plaintiffs do not appear to have authorizedthe second plaintiff to enter into this second compromise, or toreceive from the defendants less than the amount, decreed. They .do appear to have entrusted the business 'of recovering what is duein the case to him when they were leaving Jaffna, but that doesnot justify what the second plaintiff appears to have done. Thefirst and third plaintiffs have been thrown out, so far as their presentapplication is concerned, on the ground first, that any contri-bution they claim from the second plaintiff must be the subjectof a separate action; and, secondly, that writ could issue for nomore than Rs. 70, being the balance out of the Rs. 850 which thesecond plaintiff had agreed to accept.
As regards the first ground, I agree with the District Judge thatour procedure does not allow the first and third plaintiffs to claima portion of the money which they allege the second plaintiff tohave received over and above what fell to his share. I thinkthey must have recourse to a separate action, although, possibly,they are helpless people, and may not be able to incur the expenseof another action, but that cannot be helped so .far as the Courtis concerned. Mr. Ranawaka, who appears for the appellants,justify their application in this case, and refers us to the provisionsof section 344 of the Civil Procedure Code. No doubt that sectionhas been broadly construed, and it has been laid down by theIndian Courts, and I think also by the Privy Council, that broadeffect should be given to it, but no Court has so far applied thatsection to claims between plaintiffs inter se. I think the argumentis not sustainable.
As regards the second matter, the order of the District Judgewould appear to us to have proceeded on a recognition of thebinding effect of the compromise made by the second plaintiff asco-plaintiff, but neither the evidence which is called in the casenor any principles of law would make an ex parte compromise madeby one of the plaintiffs valid as against the other plaintiffs. I think,therefore, the appellants are entitled to recover from the defendants,
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not merely Rs. 70, but the entire balance of Re. 170. "But 19M.tor that purpose, however, they must make an application to the jpB Sakvayo
Conn to issue writ against defendants, who. I may observe, are
no parties to the present proceedings at all.PkUippu v.
Having indicated what remedy is available to the appellants,
1 thin It I must hold that their present application is ill-founded.
The appeal must, therefore, in our opinion* be dismissed with costs.
In order to make matters clear, I would set aside so much of theDistrict Judge's finding that only Rs. 70 was recoverable fromthe defendants.
Schneider J.—I agree.
PHILIPPU et al. v. GNAPRAKASAM