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Kirpa Kishan Kishori Vs. Babu Lal and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported inAIR1924All225; (1923)ILR45All606; 76Ind.Cas.765
AppellantKirpa Kishan Kishori
RespondentBabu Lal and anr.
Excerpt:
procedure - minor, decree against--decree set aside for want of proper representation--application to revive suit--proper order. - - it is not perhaps surprising, as it is a very technical point, and it is extremely difficult to see one's way clearly through the proper procedure, but the matter is made absolutely clear by the luminous judgment of the late shr sundar, lal in bhagwan dayal v. the ratio decidendi is that the previous suit having failed for want of a lawful guardian, the proceedings in it, including the decision, are a nullity from the point when the improper appointment of the guardian was made. whether that is so or not, it must be clearly understood that, as against these two persons who were then sued as minors, there is no previous decision on the merits......the proceedings in it, including the decision, are a nullity from the point when the improper appointment of the guardian was made. it is not, therefore, a commencement of a fresh suit. it is not an application for rehearing, because in the eyes of the law there has been none, ft is not an application to restore. it is an application to revive it by the appointment of a proper guardian, so that from flu; date; of such appointment it becomes a properly constituted suit in which the difference between the parties can be decided. we return the record to the court below, making the order which the lower court ought to have made, namely that the suit he revived as from the point at which the application for appointment of guardian is to be made. no appointment is now necessary in the.....
Judgment:

Walsh and Ryves, JJ.

1. We think the Judge has taken an altogether erroneous view in the matter. It is not perhaps surprising, as it is a very technical point, and it is extremely difficult to see one's way clearly through the proper procedure, but the matter is made absolutely clear by the luminous judgment of the late Shr Sundar, Lal in Bhagwan Dayal v. Param Siikli Das (1916) I.L.R. 39 All. 8 and if the Judge had had this decision brought to his notice and explained, he no doubt would have taken the view that we now take. We agree with the decision in that case. The ratio decidendi is that the previous suit having Failed for want of a lawful guardian, the proceedings in it, including the decision, are a nullity from the point when the improper appointment of the guardian was made. It is not, therefore, a commencement of a fresh suit. It is not an application for rehearing, because in the eyes of the law there has been none, ft is not an application to restore. It is an application to revive it by the appointment of a proper guardian, so that from flu; date; of such appointment it becomes a properly constituted suit in which the difference between the parties can be decided. We return the record to the court below, making the order which the lower court ought to have made, namely that the suit he revived as from the point at which the application for appointment of guardian is to be made. No appointment is now necessary in the case of Babu Lal who has become sui juris, but the other minor still requires a lawful guardian, arid (he plaintiff must apply to the trial court in due course for the appointment of a lawful guardian. It is understood that this order of revival is only as against the persons who were formerly sued as minors. There is a suggestion in the judgment under revision that some decision on the merits was come to in the original suit. Whether that is so or not, it must be clearly understood that, as against these two persons who were then sued as minors, there is no previous decision on the merits. If there was a previous decision it must be disregarded by the lower court. The whole case is to be tried de novo, starting its new life from the date of the application for the appointment of a guardian. The application is allowed with costs.


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