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Dammar Singh and anr. Vs. Pirbhu Singh and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil;Family
CourtAllahabad
Decided On
Judge
Reported in(1907)ILR29All290
AppellantDammar Singh and anr.
RespondentPirbhu Singh and anr.
Excerpt:
civil procedure code, section 443 - guardian ad litem--appointment of guardian ad litem other than the certificated guardian. - .....for it is admitted that no reasons for the appointment of the mother as guardian were given in the order passed by the court appointing her. in fact it would seem that the court was ignorant of the fact that jhunni singh had already been appointed a certificated guardian. it is contended before us that the appointment of the mother was illegal, and that in consequence of this illegality the decree passed in the suit and the sale consequent upon the decree are nullities. we are not aware of any authority for such a proposition. we are disposed in the absence of authority to hold that the violation of the provisions of section 443 by the court is merely an irregularity and, as such, does not of itself vitiate either a decree passed in a suit or a sale consequent upon such decree. for.....
Judgment:

Stanley, C.J. and William Burkitt, J.

1. We think that the view expressed by the learned Subordinate Judge is correct. There is no doubt that in appointing the mother of the minors as their guardian ad litem when there was already a certificated guardian, the Court acted in violation of the provisions of Section 443 of the Code of Civil Procedure. That section provides that where an authority competent to appoint a guardian was appointed or declared a guardian or guardians of the person or property or both of the minor, the Court shall appoint him guardian ad litem, unless it considers for reasons to be recorded by it that some other person ought to be so appointed. It does not appear in this case that the Court did consider that any person other than the certificated guardian ought to be appointed, for it is admitted that no reasons for the appointment of the mother as guardian were given in the order passed by the Court appointing her. In fact it would seem that the Court was ignorant of the fact that Jhunni Singh had already been appointed a certificated guardian. It is contended before us that the appointment of the mother was illegal, and that in consequence of this illegality the decree passed in the suit and the sale consequent upon the decree are nullities. We are not aware of any authority for such a proposition. We are disposed in the absence of authority to hold that the violation of the provisions of Section 443 by the Court is merely an irregularity and, as such, does not of itself vitiate either a decree passed in a suit or a sale consequent upon such decree. For these reasons we con-cur is the finding of the lower appellate Court and dismiss the appeal with costs.


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