055-NLR-NLR-V-10-NICHOLAS-v.-WALKER-,-SONS-&-CO.pdf
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Present: Mr. Justice Wood Benton.
NICHOLAS v. WALKER, SONS'* CO.
Ex parte Ernest Bichabd Nicholas, next friend of theminor plaintiff .
B.t Colombo, 8,011.
Minor—Action by next friend—Receipt by next- friend of money due underdecree—Inherent power of Court to order next friend to bring moneyinto Court—Civil Procedure Code, e. 499.
A minor becomes a ward of Court by being made a party to agait; and the Court in which the action is instituted has power, inappropriate circumstances,' apart from any provisions .of the Code,to take such steps as it may deem necessary for the purpose ofseeing that any money recovered by the next friend on behalf of theminor is actually applied for the minor's becefit.
A
PPEAL by the next friend of the minor plaintiff from an orderof the Commissioner (J. S. Drieberg, Esq.) directing him to
bring into Court the money received by him from the defendants insatisfaction of the decree in favour of the minor. The facts arefully set out in the following order of the Commissioner (February21, 1907).
" This is an action by a next friend on behalf of a minor. Judg-ment was obtained for Bs/ 295 and costs on 21st December, 1950.On 81st January defendant’s proctor moved .to draw the sumdeposited by* him in Court, as he had paid the plaintiff’s claim andcosts in full. On this the Court ordered that the money be paidinto Court, as neither the next friend nor minor had authority toreceive it. This order was made on February 8. On February 11,the plaintiff’s proctor moved that satisfaction of decree may beentered in the case.
“ The plaintiff’s proctor, Mr. A. C. Abeyewardene, showed causeyesterday against the order requiring the next friend to bring themoney into Court. He stated that it had been judiciously expendedfor the benefit of the minor, whose receipt will be produced, andthat he was prepared to satisfy the Court that the money had beenexpended as stated.
“ Mr. Abeyewardene contended that this Court had no authorityto njake the order in question; that there was no provision oflaw which gave this Court jurisdiction to prohibit a, next friendfrom receiving the proceeds of a judgment, or when received, torequire him to deposit it in Court; that a Court of Bequests hadnot the authority given to District Courts in respeet of minors (see
-P.9J. N. A 90907 (8/60)
1907.
July 16.
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1907.clause 4, Ordinance No. 12oi1895,and section 64 of the Courts
jvXy id.Ordinance). Clearly CourtsofRequests have no jurisdiction over
the estates of minors as is possessed by District Courts. Cut this• Court has, I think, an inherent right, and it is its obvious duty tosee that .the interests of minors are safeguarded, when what is dueto them is recovered by an action instituted by a next friend. Thenecessity for such safeguarding is abundantly necessary.
** The Court does not seek to make an order re the estate of aminor, but only to safeguard money belonging to a minor recoveredby a next friend through thisCourtby the money being deposited
in Court pending minority,orto bedrawn by the next friend, for
the benefit' of. the minor, under necessary safeguards.
w Mr. Abeyewardene has referred to section 499 of the CivilProcedure Code, which provides for a next friend receiving moneywith leave’of Court before decree or order, and contended that byimplication it is therefore unnecessary to obtain leave of Court inrespect of moneys received after decree. This contention, if upheld,will lead to the absurdity that the Court has power, during thependency of an action, to safeguard moneys due or paid on it, butnot as regards, moneys paid or recovered after decree. At thisstage the next friend is forced to appropriate it for his own use,as unfortunately too frequently happens.
“ Mr. Abeyewardene also referred to section 461 of the IndianCivil Code, which is as follows: 1 A next friend or guardian for thesuit shall not, without the leave of the. Court, receive any moneyor other movable on behalf of a minor— –
i
‘ (a) By way of compromise before decree or order;#
‘ (b} Under a decree or order in favour of a minor/ .
“ This section further provides for a next, friend obtaining theleave-of the Court to draw money, Ac., of minors bn giving security,&c.
" Mr. Abeyewardene contended that, as this section is not in ourCode, it is clear that the whole law on the subject is contained insection 499 of our Code, and that section 461 was advisedly omittedfrom it. It is much to be regretted that 461 was not included inour Civil Code in place of section 499. I do not think it was de-liberately or advisedly omitted, but rather that its omission is dueto oversight. But, as I have already started, this Court has aninherent right to protect the interests of a minor in a matter like the
one in question.1
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" I desire#to add that, in this instance, I have no reason to appre-hend that the next friend, who is a professional gentleman, in whoseintegrity and honour .the Court has full confidence, has not expendedthe money judiciously and exclusively for the benefit of his brother,whose interests in this action was zealously and faithfully guarded
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by him. But I desire to press my order, as its legality has beenchallenged, and as I desire, equally with. Mr. Abeyewardene, who hasargued this matter with his usual straightforwardness and ability,to have an authoritative ruling on the point.
” There is abundant reason why the . Court should have theauthority to safeguard the interests of minors in action instituted bynext friend.
” I direct that the next friend do deposit in Court the amount-paid to him, minus costs, within six weeks of this date.”
The next friend appealed.
A. Jayewardene (with him A. St. V. Jayewardene) for appellant.
Cur. adv. twit.
16th July, 1907. Wood Renton J.—
In my opinion this appeal should be allowed. I have no doubtthat the learned Commissioner. is right in holding that, in spite ofthe fact that section 499 of the Civil Procedure Code, unlike thecorresponding section 461 in the Indian Code of Civil Procedure,places no prohibition in the way of a next friend receiving moneywhich has been recovered by him in an action brought in the nameof an infant, it is perfectly competent for* any Court, through whoseagency such money has been recovered, to take whatever steps itdeems necessary for the purpose of seeing that the money is actuallyapplied for the infant’s benefit. In England an infant becomes award of Court by being made a party to a suit fGynn v. Gilbardl);irrespective of the existence of any property subject to thecontrol of the Court (In re McGrath2). I think that the principleaffirmed in these decisions applies to the extent that I have justindicated, wherever the assistance, of a Court of law is competentlyinvoked in- a minor’s behalf. It appears to me, however, that theCommissioner of Requests, in the order which he has made in thiscase, has himself found facts which exclude the exercise of thisinherent jurisdiction. For he expressly states that * he has noreason to apprehend that the money recovered in the action broughtagainst Messrs. Walker & Sons in the infant’s name has not beenproperly applied for the infant’s benefit, and the view is supportedby the infant’s receipt and the affidavit of the next friend. Underthese circumstances I think that the order which the Commissionerhas ^nade requiring the next friend to pay the money into Courtshould, in the present case, be set aside, and I set it asid$ accordingly.As the appeal was ex parte there will be no costs.
Appeal alloweth
i (1860) 1 Dr. 4 Sm. 356.* (1802) 2 Ch. 496.
190*.July 16.