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Auraj Joharmal Marwadi Vs. Dalpat Supadu - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 827 of 1933
Judge
Reported inAIR1937Bom464; (1937)39BOMLR925
AppellantAuraj Joharmal Marwadi
RespondentDalpat Supadu
DispositionAppeal allowed
Excerpt:
minor-decree passed against-negligence of guardian ad litem-decree cannot be challenged by independent suit-proper remedy-must be in original suit by ordinary means provided by civil procedure code (act v of 1908). in the absence of fraud or collusion, a minor cannot challenge in an independent suit the validity of a decree duly passed against him on the mere ground of negligence of his guardian ad litem, however gross that negligence may be. his only remedy in such a case would be by adopting in the original suit itself such means as the rules of procedure provide, as for instance, by an application to set aside the decree under order ix, rule 13, or by a review under order xlvii, rule 1, of the civil procedure code, 1908.;raghubar dyal sahu v. bhikya lal misser (1885) i.l.r. 12 cal. 69,..........point which is by no means free from difficulty. the plaintiff in the suit is suing to set aside a decree passed in 1927 against him on certain money bonds which had been passed by his mother. in that suit the mother was the guardian ad litem of the plaintiff in the present suit, who was a minor. she entered an appearance and engaged a pleader, but at the hearing of the suit the pleader put in a purshis that he had got no instructions, and, therefore, retired from the suit, and a decree was then passed against the property coming to the hands of the minor. that decree has not been challenged in review nor has an attempt been made to set it aside under order ix, rule 13, civil procedure code, 1908, in 1929, the minor by his next friend started this suit for a declaration that the decree.....
Judgment:

John Beaumont, Kt., C.J.

1. This is a second appeal from a decision of the District Judge of East Khandesh, and it raises a short point which is by no means free from difficulty. The plaintiff in the suit is suing to set aside a decree passed in 1927 against him on certain money bonds which had been passed by his mother. In that suit the mother was the guardian ad litem of the plaintiff in the present suit, who was a minor. She entered an appearance and engaged a pleader, but at the hearing of the suit the pleader put in a purshis that he had got no instructions, and, therefore, retired from the suit, and a decree was then passed against the property coming to the hands of the minor. That decree has not been challenged in review nor has an attempt been made to set it aside under Order IX, Rule 13, Civil Procedure Code, 1908, In 1929, the minor by his next friend started this suit for a declaration that the decree made in 1927 was not binding on him on the ground that the guardian ad litem, was guilty of gross negligence in the conduct of his defence, and he asked for an injunction to restrain the decree-holders from executing the decree. He also asked for relief in respect of a mortgage bond executed by the mother, but in respect to that he failed, and there is no appeal on that point. The trial Court held that the money bonds executed by the mother were not passed for legal necessity, and that the minor was entitled to challenge the decree founded on those bonds, and that decision was upheld by the District Judge. In second appeal, I am bound by the finding that these money bonds were not passed for legal necessity. The point, however, which arises on this appeal, is a pure question of law, i.e., whether a minor can challenge in an independent suit the validity of a decree passed against him on the ground of the negligence of his guardian ad litem. There is a good deal of authority upon the point in India, but it is conflicting. In Raghubar Dyal Sahu v. Bhikya Lal Misser I.L.R. (1885) Cal. 69, Beni Prasad v. Lajja Ram (1916) I.L.R. 38 All. 452, and Imam Din v. Puran Chand I.L.R. (1919) Lah. 27, it was held that the minor could not challenge a decree duly passed against him on the ground of negligence by the guardian, and that his only remedy would be by way of review if he could bring himself within the terms of Order XLVII, Rule 1. On the other hand, in Lalla Sheo Churn Lal v. Ramnanandan Dobey I.L.R. (1894) Cal. 8 and Siraj Fatma V. Mahmud Ali I.L.R. (1932) All. 644, f.b it was held that in such a case the minor could challenge the decree in a substantive suit. In the latter case, which was the decision of a full bench, Mr. Justice Sulaiman, as he then was, gave an exhaustive and, if I may say so, a very interesting and instructive judgment, in which he reviewed the whole matter. I agree with him that Section 11 of the Civil Procedure Code relating to res judicata cannot apply when the previous judgment which is alleged to have decided the matter is challenged in the suit. The Court, I think, in that case went largely on the ground that in England there is in a minor a substantive right to set aside a decree against him on the ground of negligence by the guardian. I am not satisfied myself that that is so. There is no doubt one decision of Malins V. C In re Hoghton : Hoghton v. Fiddey (1874) L.R. 18 Eq. 573, in which the learned Vice-Chancellor seemed to think that such a right existed, but I have not been referred to any other case on the subject, and I never in my experience came across any case of that sort in England. A judgment may of course be challenged in an independent suit on the ground of fraud or collusion, and if 'it were held that the negligent conduct of the guardian ad litem showed collusion with the plaintiffs, that undoubtedly would be a ground on which the judgment could be set aside. But mere negligence by a guardian cannot by itself be any evidence of fraud or collusion against the plaintiffs, who may very probably have no means whatever of ascertaining on what grounds the guardian acted. It seems to me in principle very dangerous to allow such a claim as this. A minor duly represented, as this minor was, by a guardian ad litem is bound by the order made just as effectively as an adult defendant would be, and to say that the decree against the minor can be set aside on the mere ground of negligence by the guardian for which the plaintiff is in no way responsible seems to me to open the door to a great deal of litigation. It might not be difficult for a minor on attaining majority to persuade his guardian ad litem, who is probably a relative, to admit negligence in the conduct of the minor's affairs in the suit. There appears to be no authority of this Court on the question, and I am not disposed to sanction anything in the nature of a fresh cause of action designed to re-open decrees legally passed. I myself prefer the view that in the absence of fraud or collusion, if a minor wishes to challenge a decree against him on the mere ground of negligence by his guardian, however gross that negligence may be, he must do so in the suit, by such means as the rules of procedure provide. In my opinion, therefore, the appeal must be allowed. No order as to costs.


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