( 462 )
Present : Lascelles CJ. and Middleton J.NONOHAMY et al. v. BABUN APPU.
135— D. C. Galle, 7,668.
Substituted party—Personally liable to pay costs to opposing party—GiviiProcedure Code, chapter XXII., ss. 341, 339, and 404.
A substituted party is personally liable to pay the costs ofaction to a successful opponent.
The new party representing the interest oF the former party,who is brought before the Court by order, stands exactly in thesame plight and condition as the former party; is bound by hisacts; and maybe subject to all the costs of the proceedings fromthe beginning of the action.
rjpHE facts appear sufficiently from the judgment.
Bawa, for the first defendant, appellant.—The appellant is entitledto get his costs from the substituted plaintiff. If the substitutedplaintiff won, he would have been entitled to get his costs from thedefendant; why should he not be liable to pay the costs of actionif he lost the case ? The substituted plaintiff may have refused tobecome a party to this case when he was cited to show cause ; buthaving taken upon himself the conduct of the case, he could notnow disclaim responsibility for the action. Counsel referred to CivilProcedure Code, sections 341, 404, and 339. Nugara v. PalaniappaCheity}
Elliott (with him Hayley), for the substituted plaintiffs, respon-dents.—In Nugara v. Palaniappa Chetty1 the administrator wasresponsible for the action ; he was therefore personally liable.Until the decree of the Supreme Court is corrected, writ could notissue against him personally. Counsel cited Maricar v. Perera?
Bawa, in reply.
Cur. adv. vult.
October 13, 1911. Middleton J.—
This was an appeal against an order refusing it make the sub-stituted plaintiffs personally liable for the costs incurred by thefirst defendant in contesting an action and appeal entered by theoriginal plaintiff, but which appeal was subsequently prosecuted bythe substituted plaintiffs, when duly made parties to the action,as the legal representatives of the deceased plaintiff.
1 [1911) 14 N. L. B. 327,8 (1391) 1 S. C. J?. 17.
( 463 )
In prosecuting the appeal the substituted plaintiffs, if they had P*. i?»1911succeeded, would have induced the Supreme Court to contravene middustonthe view of the District Judge (Mr. Macleod) in his original judgmentJ-
that the action was an attempt by the plaintiff in conjunction with jVonokamy v.the third defendant, his son (now a substituted plaintiff), to deprive Babun apputhe first defendant of a share of the premises he bought in executionagainst the third defendant, the then owner. This view of thecase the Supreme Court upheld by dismissing the appeal anddirecting the appellant to pay the costs.
Unfortunately the decree was drawn in the singular. Thisclearly is a clerical error, and can, I think, be. amended undersection 189 of the Civil Procedure Code. If the decree is amended,it will meet the objection raised by Mr. Elliott on the authority ofMaricar v. Perera1.y
I have no doubt, however, that The substituted plaintiffs areliable to pay the costs of the action. If they had succeeded, theywould have benefited to the extent desired by their predecessor,the original plaintiff, and as representatives of him would no doubthave sought for and obtained execution against the first defendantin their own personal favour for all costs the original plaintiff hadincurred in the action.
The general rule is, T take it, that the parties on the record areprimarily liable for the costs of the action, and if a substitutedparty ratifies and adopts the position taken up by the party he issubstituted to represent, without any objection at the time, andwith the ultimate intention and object of taking personal advantageof success if he obtains it, I cannot see that he has reason to complainif the Court compels him to pay costs if the case is decided againsthim. If the substituted plaintiffs had desired to protect themselvesfrom liability to costs they need not have supported the appeal,even though made parties when the Court might have exemptedthem firom costs. The substituted plaintiffs might also have showncause, under section 398 of the Civil Procedure Code, why theyshould not be held to be the legal representatives of the deceased.
Sections 341, 339, and 404 cited by counsel for the appellant donot seem to give us much assistance on the point before us, noram I able to find in the Civil Procedure Code anything directlybearing on the question.
In DanielVs Chancery Practice, voL /., p. 295, it is said :
“The new party, representing the interest of the former party,who is brought before the Court by order, stands exactly in the sameplight and condition as the former party ; is bound by his acts ;and may be subject to all the costs of the proceedings from thebeginning of the action.” See Whitcomb v. MinchinCook v.
Hathway* and Froward v. Bingham,4 in which Sir Lancelot Stadwell
1 (1891) l S. C. R. 17.* 5 Mad. 9J.
*L.R.8 Eq. 612 V. 0. M.
4 4 Sim. 483,
( 464 )
0ct-13'1011 said : “ If the executor does not adopt the original suit he is notMiddleton liable for the Costs, of it,” which implies that, if he does, he is liable.
1 think, therefore, that under chapter XXII. of the Code it is forNonohamy i>. this Court to rule on the question and I think also that we ought to beliabun Appii guided by the decision of the House of Lords in Boynton v. Boynton,'followed in Pembroke r. Warren- and Watson v. Holliday,-' and inthe case of a company re London Drapery Stores.' In these casesit was held that a party added, as the substituted plaintiffs were,becomes a substituted party, and is personally liable to costs.
In my opinion, therefore, the order of the District Judge must beset aside, and the appeal allowed with costs.
The writ already issued against the respondents here will go fora sum less Rs. 75, which I understand were deposited in Court assecurity for costs of the appeal by the deceased original appellant.If this appellant left any estate, then the respondents’ remedy, ifthey are the legal representatives, of the deceased, is obtainableout of his estate ; otherwise I fear they have none. I direct theamendment of the decree required under section 189.
I agree with the judgment of my brother Middleton, and havenothing to add.
NONOHAMY et al v.BABUN APPU