- (1.) THIS is an execution second appeal by the judgment-debtor Chimna arising out of a suit for money. The respondents Chunnilal and Bakhtawarmal along with five others who have not been made parties to this appeal instituted a suit against the appellant for a sum of Rs. 3073/7/ -. The parties obtained a decree on the footing of a compromise from the court of the learned Judicial Superintendent, Sojat, by which it was provided that the present appellant would pay a sum of Rs. 700/- on Falgun Sudi 11, Svt. 2004 and a further instalment of Rs. 1000/- only on Baisakh Sudi 15 of the same Samwat year but that in case he defaulted to make the aforesaid payments on the due dates, the plaintiffs would be entitled to recover the entire suit amount, that is, Rs. 3073/7/ -. The parties were directed to bear their own costs in the suit. It is admitted that the present appellant paid the first instalment of Rs. 700/- a little after Falgun Sudi 11, Svt. 2004 which was, however, accepted by the respondents. As regards the second instalment, the appellant's case is that he offered the amount to the decree-holders on the due date but they refused to accept the money. It is further alleged that as the courts had closed for the summer vacations immediately thereafter, the appellant deposited the entire sum of Rs. 100/- in the executing court on the 1st July, 1948, when that court reopened after the long vacation saying in his application that the decree-holders had refused to accept the money on its having been offered to them. On 1st July, 1948, respondent Bakhtawarmal who was one of the decree-holders, filed an execution application for the recovery of the whole of the decretal amount except the sum of Rs. 700/- already received, and obtained a warrant of attachment against the judgment-debtor's property. The latter raised an objection that he had satisfied the entire decree and was not liable to pay anything more towards its satisfaction. The executing court dismissed the objection. The finding of that court was that the judgment-debtor had failed to pay the instalments on the due dates and that his version that he had offered to pay the sum of Rs. 1000/- to the decree-holders on the due date was false and that the deposit of Rs. 1000/- made by him on the 1st July, 1948, was not a sufficient compliance with the terms of the decree. The judgment debtor took an appeal from the above decree to the learned District Judge, Pali, who affirming the findings of the court below, dismissed the appeal. THIS second appeal has been filed from the above judgment and decree.
(2.) A preliminary objection was raised by learned counsel for the respondents that this appeal was defective for want of necessary parties thereto and must be dismissed. The argument of learned counsel was as follows. The decree had been obtained against the present appellant by seven persons in all. Of these, Chunnilal and Bakhtawarmal only have been impleaded as parties to this appeal. The other decree holders were Hastimal and Babulal who have been described as minor sons of Chunnilal and they had brought the suit through their father Chunnilal who acted as their next friend. Jeevraj and Prithviraj were also decree-holders and they were sons of Juharmal. It appears that they were also minors and sued through their next friend Chunnilal. The seventh decree-holder was Bastimal, also minor son of Juharmal, and he sued through his father Juharmal who was his next friend. The name? of all these persons appear in the decree of the trial court dated 18th March, 1949, as plaintiffs. The contention of learned counsel is that all these persons are necessary parties to the present appeal as they had obtained a joint decree against the present appellant. He cited Chandra Kumar vs. Elahi Buksha (1) (A. I. R. 1926 Cal. 667.) in his support where it was held that where the result of not joining some defendants in an appeal would be that if the appeal is decreed there will be two inconsistent decrees, the nonjoinder is fatal to the appeal and it must be dismissed. It must be pointed out, however, that the application for execution moved on the 1st of July, 1948, was signed by Bakhtawarmal only and he put his signatures as Bakhtawarmal Chunnilal. Now, in the case of a joint decree, O. XXI R. 15 C. P. C. permits one of the decree-holders to apply for execution for the benefit of himself and the other decree-holders. There is in fact a presumption, that when one of the decree holders applies for such execution, he does so for the benefit of the whole lot of the decree-holders and it is not for the judgment-debtor to object to such a course being adopted. If the executing court finds it necessary it can always take the necessary steps to safeguard the interests of the decree-holders who have not applied. See Madho Parshad vs. Ghanaya Lal (2) (A. I. R 1930 Lah. 603. ). Although, therefore, it was open to one of the decree-holders to apply for execution in the present case, it cannot be said that the other decree-holders, who had not applied, were not parties to the execution. Bakhtawarmal had stated, the names of the decree-holders in his application for execution of the decree. When the executing court dismissed the judgment-debtor's objection, I am of opinion that he should have impleaded the rest of the decree-holders as parties to his appeal whether in this Court or in the first appellate court. It was contended by learned counsel for the appellant that as only Bakhtawarmal & Chunnilal had applied to execute the decree and as he thought that these were two decree-holders, he had impleaded only these decree-holders as parties to his appeal. This contention, in my opinion, has no force. The test in such a case is not as to who is the applicant for the execution of the decree for Order XXI R. 15 permits any one or more of joint decree-holders to apply for execution of the whole decree; but the real test is who are the persons interested in the execution of the decree and all such persons are, in my view necessary parties to an appeal from the decision of the executing court. Reference may be made in this connection to Mohini Mohun Das vs. Bungsi Buddan Das (1) (I. L. R. XVII Cal. 580.) which is a case which went up to their Lordships of the Privy Council. There three suits were brought by one of three joint-creditors, the others being named as co-plaintiffs with him in the plaints, which he alone signed and verified. It was contended that as the plaint had been signed and verified by one of the creditors only, he alone must be treated as plaintiff. This contention was repelled and it was held by their Lordships that there was no rule that a person named as a co-plaintiff was not to be treated as a plaintiff unless he signed and verified the plaint. It was further held by their Lordships that the two plaintiffs Who had not signed became parties to the suit on the very day it was instituted, and, therefore, the suits were not barred by time and that any further proceedings taken to add one of them as co-plaintiff were wholly inoperative and the suits when instituted were not defective for want of parties. Applying the principle of the case above referred to, I have no hesitation in holding that all the decree-holders were parties to the execution, and are further necessary parties in any appeal from the decision of the executing court. It was contended by learned counsel for the appellant that the other decree-holders were minors and that the parsons who have been impleaded as parties to this appeal effectively represented them, and, therefore, the failure to implead the minors should not be held to be a defect fatal to the present appeal. I am unable to accede to this contention. It may. be pointed out that all the seven persons named above were plaintiffs; in the case and a decree had also been passed in favour of all of them. Hastimal and Babulal plaintiffs are sons of Chunilal and Jeevraj and Prithviraj are sons of one Juharmal, although they also sued through Chunilal as their next friend. The remaining plaintiff Bastimal sued through his next friend Juharmal who is not a party to this appeal It is not correct to say that as Hastimal, Babulal Jeevraj and Prithviraj were minors and sued through Chunnilal as their next friend, it was sufficient to implead Chunnilal as a respondent. A minor is a party to a suit and every suit by such person has to be instituted in his own name although the law provides that such a suit has to be brought by his next friend. The reason why no proceedings can be taken by an infant without the assistance of a next friend is his supposed want of discretion and his inability to bind himself with, or make himself liable for the consequences of the suit. But it must be remembered that it is the minor who is the real party; the next friend only represents him and acts for him and is not a party to the suit in the proper sense of the term. So far, therefore, Chunnilal was a next friend of the minor plaintiff-decree hold-ers above named, he could not be considered to be a party instead of the minors themselves in so far as their interests were concerned. So far as the plaintiff Bastimal is concerned it must further be pointed out that he did not sue through Chunnilal as his next friend, and Chunnilal could in no case act for him in any manner whatsoever. The result is that the contention of learned counsel for the appellant, that his appeal was properly constituted as regards parties because the next friends of the minor plaintiffs had been impleaded by him, has no meaning and is consequently repelled. Learned counsel for the appellant at one stage argued that so far as the decree was concerned, the minors were undoubtedly parties, but that it was the decree-holder Bakhtawarmal only who applied for execution, and so he was the only necessary party in execution proceedings. Learned counsel was, however unable to produce any authority in support of his proposition, and I find it utterly impossible to accept it. Lastly it was contended by learned counsel that an objection relating to non-joinder of parties should not be allowed to be raised at this stage according to the principle underlying Order 1 rule 13 C. P. C. It is true that ordinarily all objections on the ground of non-joinder of the parties must be taken at the earliest possible opportunity and if an objection of this nature has not been so raised, it must be deemed to have been waived. It is necessary to point out, however, that this rule cannot apply to cases where it may be impossible to decide a suit or an appeal in the absence of necessary parties on the record. A distinction must be drawn between non-joinder of necessary parties and non-joinder of proper parties. If the non joinder is only of proper parties, the principle is well settled that such a defect will not be fatal to the suit. In such a case, the court must deal with the matters in controversy in so far as the parties actually before the court are concerned. But where there is a non-joinder of necessary parties, that is, parties in whose absence the court cannot pass an effective decree at all, different considerations would seem to arise, and in such cases there will be no alternative but to hold that such a defect would be fatal, and O. 1, R. 13 C. P. C. cannot be pressed into service to dispense with the joinder of such necessary parties. Thus, if the decree that has been passed by the courts below has to be set aside against the respondents who are on this record in the absence of the other decree-holders, it would at once result in two inconsistent decrees existing side by side, and such a situation has to be avoided at all costs. Such a contingency in my opinion, clearly shows that the other decree-holders whose rights are one and indivisible with the present respondents were and are necessary parties to this appeal. In these circumstances, I am constrained to come to the conclusion that the present appeal is not properly constituted and cannot be proceeded with in the absence of the other decree-holders who have not been impleaded as parties to this appeal and whose interests are indivisible and inseparable from the interests of the respondents who are on the record. Learned counsel for the appellant eventually prayed that the other decree-holders may be brought on this record under the provisions of O. 1. R. 10 C. P. C, and that this Court had ample power to do so. It may be pointed out that no application was submitted to this Court praying for this relief, and learned counsel thought fit to make an oral request in the matter only. I am not oblivious of the fact that a written application is not an indispensable requirement of law, but I should have expected learned counsel to put one in the circumstances of the case, stating the reasons which in his opinion entitled him to that relief. I have, however, given this matter my very careful and anxious consideration, and have come to the conclusion that no such permission should be granted in the circumstances of this case at this stage, It is necessary to point out in this connection that even the judgment-debtor's first appeal in the lower appellate court was not properly constituted in the absence of the other decree holders having been impleaded as respondents. There appears to me to be no reason why they should not have been impleaded. The names of all the decree-holders have been clearly mentioned in the decree-sheet prepared by the trial court. The decree-holder Bakhtawarmal, who thereafter applied for execution also clearly mentioned the names of all the decree-holders, although he did not say that they were minors at that stage; but whether they were or were not so, in my opinion, did not make any difference as regards the necessity of their having been impleaded in any appeal from the order passed by the executing court dismissing the judgment-debtors objection. No reasons were intimated to this court to enable it to come to the conclusion whether it was a bonafide mistake on the part of the appellant or his legal advisers or whether it was a case of sheer negligence on their part. It cannot also be over-looked that the other respondents having not been impleaded in the appeal, valuable rights have accrued in their favour of which they need not be deprived in the ordinary course. No exceptional circumstances have been pointed out why a departure from that rule should be made in favour of the appellant in the present case. I may in this connection refer to Chocklingam vs. Seethai Ache (4) (A. I. R. 1927 P. C. 252.), which dealt with the powers of the court to add a respondent under O. XLI R. 20 C. P. C. , which was, however, not relied upon by learned counsel for the appellant in the present case, where their Lordships of the Privy Council held that owing to the appellants' failure to make certain defendants respondents within the time limited for filing an appeal, the appeals so far as such respondents were concerned, were prima facie barred by limitation, and that they were entitled to hold the decrees in their favour undisturbed and a substantive right of very valuable kind had accrued in their favour of which they should not lightly be deprived. The net result is that I hold that the preliminary objection prevails and that this appeal is defective for want of necessary parties and must, therefore, be dismissed. In view of the fact that this objection was not raised in the court below, I would leave both parties to bear their own costs in this Court. Leave to appeal is granted. .;