JUDGMENT

Mackney, J - In Civil Suit No. 26 of 1933 of the Sub-Divisional Court of Bassein the present respondent, U They, sued the appellant, U Pe Tru, on a mortgage bond for recovery of money due on which interest has never been paid. The defendant-appellant at first objected that the mortgage was made in favour of a society called the Sabachi Association of which he himself was a member. His objection was allowed and U They then filed an amended plaint in which he claimed to be acting on behalf of the society and a3ked permission to sue on behalf of himself and the other members of the association. Notices under Order 1, Rule 8 of the institution of the suit were sent to all members of the society and all but four intimated their consent to the institution of the suit for their benefit. The four dissentients complained that the society had ceased to function since 1930, and that U They himself did not pay what he owed to the society and did not take action against other members of the society who owed money to it, because they were his relatives. The other members filed a statement setting out that at a duly convened meeting of the association held on 11th February 1932, 12 out of the 17 members attended and unanimously resolved that U They, being the President, should be appointed to act as agent of the association. This statement is signed by ten of the members.

2. The learned Sub-Divisional Judge considered that the case was parallel with Harkisondas Shivlal v. Chhaganlal Narsidas 1916 Bom. 216 and held that as there were certain members of the association who were opposed to the bringing of the suit, permission could not be given to the plaintiff to bring the suit. On appeal the learned District Judge held that the decision of the Bombay High Court was not on all fours with the facts in the present case and that it was not necessary that all the persons having a common interest should agree before one of them should be allowed to bring a suit as their representative. He therefore allowed the appeal and remanded the case to the lower Court for disposal on the merits. Against this order Maung Pe Tru has now appealed to this Court. It may here be noted that the appeal was at first wrongly treated as a second appeal and placed before a Single Judge of the Court. The order of the District Court was not a decree, but an order remanding the case for trial. An appeal would lie therefore under Section 44, Rule 1, Clause (u), and there could clearly be no second appeal.

3. Although four dissentient members of the society do not wish the suit to be brought, they advance no valid reason why it should not be brought. There is no doubt that the association is functioning and that the plaintiff-respondent has been authorised by a large majority of the members to prosecute this suit. No doubt, it is all very comfortable for the members of the society who have borrowed money therefrom that they should not be sued for the return of that money, but the majority of the members clearly have a right to sue for its return when they so desire. If the dissentient members consider that other persons ought to be sued they should endeavour to gain their point in the society and if they cannot gain their point, they can set about having the society dissolved and its affairs wound up. In the meantime although for some reason they may not wish U They to prosecute the suit, yet it cannot be denied that it is in their interests as members of the society that he should sue. The suit is therefore undoubtedly to the benefit even of those four dissentient members.

4. The Bombay case to which reference has been made is not a parallel case. In that case some members of a section of a caste wished to bring a suit requiring the headman of the whole caste to furnish accounts and to refund whatever amounts should be found due. Out of 183 members constituting the section in question 112 supported the plaintiff's contentions while the rest supported those of the defend