132-NLR-NLR-V-15-BEENI-v.-BALASURIYA.pdf
( 474 )
Present: Lascelles C.J. and Pereira J.
BEEUI v. BALASUBIYA.236—D. C. Trincomalee, 475.
Minor—Appointment of next friend for claim inquiry—Claim by minor
dismissed—Action by next friend under s. 247, Civil Procedure
Code, without getting himself re-appointed.
Aduly appointed nextfriendpreferred a claimonbehalf ofa
minor. The claim was dismissed. He thereupon filed an actionunder section . 247 without getting himself re-appointed next friendforthepurpose ofthisaction.The defendant, withoutmovingto
have the plaint taken off the file under section 478 on the groundthatthenext friendwasnot duly appointed, tooktheobjectionin
his answer.
Held, perLasceu^s C.J., that the appointment of the next
friend for the purposes oftheclaiminquirywassufficientto enable
the next friend to bringtheactionunder section 247 ofthe Civil
Procedure Code, when the claim was dismissed.
Held, per Pereira J., that the defendant should have moved tohavetheplaint takenoffthe fileunder section 478,andthat it was
not open to him to raisetheobjection as tothestatus ofthe next
friend in the answer.
Obiter.—The appointmentofnestfriendlor.the claim inquiry
did not hold good for the purpose of the action under sectin 217.
fJlHE facts are set out in the judgment.
'Wadsworth., for the plaintiff, appellant.—A person appointednext friend may bring an action on behalf of a minor without acertificate of curatorship. See lJdum.a Lebbe et al. v. Seyadu Ali etal., 2 Ounasekera v. Abubakkar. 3
' (lm) 1 Tam. 18.2 {1895) 1 N. L. R. 1.
3 (1902) 6 N. L. R. 148.
( 475 )
An action under section 247 of the Civil Procedure Code is in the 19121.naiture of an appeal from the.order made in the claim inquiry. An ^^7v •unsuccessful next friend, who claimed on behalf of a minor, need not BalasuHyaget himself appointed next Mend a second time for bringing anaction under section 247; this action is not a separate action.
The order made in the claim proceeding is subject to the order inthe action under section 247.
If the action under section 247 is treated as a separate action,the fourteen days allowed for bringing that action may not besufficient to get a next friend appointed.
The minor would be bound by the order in the claim inquiryunless he brought an action within fourteen days. . To insist on theminor getting a new next friend appointed would in very manycases result in denying to him the right of an action under section247. Counsel referred to Ornery. Lebbe v. Dias et a/.,1 Weerakoon v.
Nikulas,2 Fernando v. Fernando.*
It is not open to the defendant to raise this objection in the answer.
He should have moved by way of summary procedure that theplaint be taken off the tile. Mohamadu Umma v. Mohideen*
The order of the Court in accepting the plaint without any demuron the part of the defendant under section 478 is tantamountto appointing plaintiff as next friend. The Court can even nowappoint the plaintiff as next friend. See Appuhanuy v. Dionts.*
Sampayo, K.C., for the defendant, respondent.—A claim is quitea different proceeding from an action under section 247. For thepurposes of the action under section 247 there should have been aseparate appointment of next friend. Counsel referred to Beenv. Pulle,6 Mohammado Vnima v. Gader Mohideen.7
It is not open to the Court- to make an appointment now.
Wadsworth, in reply.
Cur. adv. vult.
November 5, 1912. Lascelles CM.—
In this case Pakir Mohideen was appointed next friend of the
appellant, who was a minor absent in India, for the purpose of
claiming certain property which the defendant in this action had
seized as the property of his judgment-debtor. The claim was
dismissed with costs. Pakir Mohideen then proceeded to institute
the present action under section 247. When the plaint was filed
the defendant-respondent did not apply, under section 478, to have
the plaint taken off the file on the ground that Pakir Mohideen was
not appointed next friend for the purpose of the action, but he took
• (1894)3 S.C.R. 147.*■(1892)1 S. C. R. 302.
2 (1892)2 C.L.R. 48.*(1909)12 V. L. R. 382.
a (1892)2 C.L.R. 82.*(1893)2 8. C. R. 81.
' (1892) 2 C. L. R. 163.
( 470 )
1912. the objection in his answer. This procedure is probably erroneous.T..aiw».M (vide Mohamadu Ummn v. Mohideen1), but I prefer to decide theC J. appeal on the merits.
Beeni v. The District Judge has dismissed the action on the grounds (1>Balaauriya that the authority given to Pakir Mohideen to prefer a claim as nextfriend of the minor did not extend to the institution of an actionpnder section 247, and (2) that the action is not maintainablewithout a certificate of curatorship.
It is conceded that the dismissal of the action on the secondground is wrong, and that no certificate of curatorship is necessaryto enable this action to be brought (vide Uduma Lebbe et a/, v. Seyadu.Ali et ah2 and Ghmasekera v. Abubakkar3).
The other ground on which the learned District Judge actedraises a question of some difficulty, namely, whether when a nextfriend has been appointed to prefer a claim, and the claim is dis-missed, he is able to proceed to an action under section 247. withoutfurther appointment from the Court.
If the ruling of the learned' District Judge is correct, minorswill be placed in a position of considerable difficulty when theyprefer claims through their next friends. If the claim is disallowed,it is settled that the minor is bound by the order, and that the onlycourse open to him is to institute an action under section 24.7.(Omeru Lebbe v. Dias et al.4) But it has been pointed out to us thatin many cases it will be difficult, if not impossible, for the minor tohave a next friend appointed within the fourteen days which thelaw allows for the institution of the action, for if will be necessaryto apply to the Court under section 481 and to make the defendanta party to the application. It is true that a claim proceeding andan action under section 247 are different proceedings, so that froma purely technical point of view there is force in the argument thatan appointment of next friend for the purpose of preferring a claimis not the same thing as an appointment of a next friend for the, purpose of bringing an action under section 247 in the event of theclaim being disallowed.
But having regard to the scope of sections 241 to 247 of theCivil Procedure Code, I do not think that, for the purpose underconsideration, the making of a claim and the institution of anaction under section 247 can be regarded as two separate anddistinct proceedings.
The truth is that the two proceedings are mutually interdependent.Neither procedure is complete without the other. An actionunder section 247 cannot be instituted by a person who is not aparty to the claim proceeding, aud the order in a claim inquiry isnot a final adjudication on the title of the contestants. It placesthe party against whom the order is made- in a special position
„ * (1892) 1 8. C. R. 302.2 (1902) 6 N. L. R.. 148.
* (1895) 1 N. L. R. 1.* (1894) 3 S. C. R. 147.
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created by the Code. The order is binding on him if he does notwithin fourteen days institute an action under seotion 247, but ifhe does institute an action his rights are determined by the result ofthe action.1 cannot believe that theCode contemplates aparty
to a claim proceeding being placed insuch aposition thatwhen
the order isadverse to him he cannotproceedto an actionunder
section 247without in the meantimemakinganother application
to the Court, which he may or may not be able to carry throughwithin the allotted time.
When an application is made for the appointment of a nextfriend in order to prefer a claim on behalf of the minor to propertyseized in execution, .the object is to obtain a judicial deoision on theminor’s right to the property, and I find it difficult to believe thatthe effect of the appointment, when made, is to allow the minorto proceed only so far as the claim inquiry, and to oblige him to stopshort before he reaches the stage when his right can be finallydisposed off. Having regard to the interdependence of the claiminquiry and the action under section 247, and to the right whichthe Code gives to an unsuccessful claimant to proceed to an actionunder section 247, I am of opinion that the appointment of a nextfriend to prefer a claim on behalf of a minor must be taken toinclude permission to take full advantage of the procedure for theinvestigation of the claim, and to enable him to go on to an actionunder section 247 if the claim is disallowed. I would allow theappeal with costs, and set aside the judgment and remit the case tothe District Judge for trial in due course.
Pbbkhu J.—
1 agree to the order proposed by my Lord the Chief Justice, butI cannot see my way to accede to the contention put forward bythe appellant’s counsel that when a next friend is once appointedin one action to prefer a claim on behalf of a minor to properlyseized in execution of the decree in that action, the appointmentholds good for the purpose of instituting another action, namely,an action under section 247 of the Civil Procedure Code. If thisargument is sound, it will, I am afraid, have to be assumed thatwhen the minor succeeds in establishing his claim to the property.seized, the next friend would become automatically convertedinto a guardian ad litem for the purposes of an action under section247 by the execution-creditor against the minor. I cannot bring'myself to fhink that such a proceeding was contemplated by theCivil Procedure Code. In my opinion a next friend or a guardianad litem is appointed, as the very terms of the latter expressionimply, for the purposes of any one particular proceeding or action,and at the termination of that, the next friend or the guardianad litem, as the case may be, becomes functus officio. This viewmay work hardship where an action under section 247 of the Civil
1912.
Lasceixes
C.J.
Beeni v.BoHaturit/a
( 478 ')
IMS.
Pebbiba J.
Beeni v.Jtolaawnya
Procedure Code has to he instituted on behalf of a minor, becausethe time for the institution of the action is limited to fourteen daysfrom the dat.e of the order in the claim inquiry; but, at the same timeI am not sure that where it is found to be impossible to push throughthe appointment of a next friend within fourteen days, the Courthas not the power to extend the time. Lex non cogit ad impossibiliaaut inutilia, and on that principle it has been held that where aparty was entitled to appeal from an order in a case subject to thecondition of giving security for costs within a certain time, hewould be held to have complied with the condition, if he offeredand was ready to complete the security within the limited time,although, owing to the act of the Court or of the respondent, it wasimpossible, or at any rate impracticable, to complete the securitywithin that time, and it was in fact not completed until long after.Waterton v. Baker.1 I am further doubtful that a minor is boundby the provision as to time in section' 247 of the Civil ProcedureCode. That provision is no more than a provision regulating the1prescription of the action, and it is a question whether the provisionsof sections 11 and 15 of Ordinance No. 22 of 1871 do not apply.In the peculiar circumstances of the present case, however, thesematters need not be decided. The defendant appears to have takenexception to the status of the “ next friend ” in his answer. That,clearly, he could not do. The answer can contain only suchaverments as are indicated in section 75 of .the Code.
The course open to a defendant in a case like the present is clearlylaid down in section 478 of the Civil Procedure Code. In spite ofthat section, however, a defendant may, in my opinion, bring tothe .notice of the Court an irregularity like the above, and it wouldthen be quite open to the Court (or it may do this ex mero motu suo)to consider the advisability of allowing the action to proceed, theCourt being bound to keep a vigilant eye on the interests of minors,but when the Court acts in this way the defendant can, of course,have no further voice in the matter. I think that the defendant inthe present action was concluded by his omission to take steps interms of section 478 of tEe Civil Procedure Code, and as, in myopinion, the minor, in the circumstances of. this case, is not likelyto be prejudiced by his being allowed to proceed with the aid of theperson now appearing as his next friend. I see no reason to stay theprogress of the action.
Appeal allowed.
1 h. B. S Q. B. 178.