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Peare Lal and anr. Vs. Ashraf Khan - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1923All213; 71Ind.Cas.456
AppellantPeare Lal and anr.
RespondentAshraf Khan
Excerpt:
civil procedure cede (act v of 1908), section 115, order ix, rule 13 - guardian ad litem unfit to represent minor defendant--ex parte decree--restoration--revision. - - if the minors were not represented then clearly there was sufficient cause for their non-appearance and the district judge was bound by the provisions of the rule to order the restoration of the suit. in not doing so he has failed to exercise a jurisdiction vested in him by law which he was bound to exercise......the minors. it is not open to me sitting as a court of revision to go behind this finding. the learned judge held that he must decide the case upon the assumption that there was no guardian ad litem appointed for the minors. he then went on to consider the question whether the minors had been prejudiced by the fact that they were not represented and holding that they were not, as the case had been fully contested by their adult brothers, he refused to set aside the decree. if this had been a subsequent suit to set aside the decree this point might, under the rulings of this court, have been material. in an application under order ix, rule 13, however, the only point which the judge had to consider was whether the defendants were prevented by any sufficient cause from appearing. order.....
Judgment:

Daniels, J.

1. This is an application for revision of an order of the District Judge of Saharanpur dismissing an appeal from an order refusing to set aside a decree passed ex parte against the applicants, Piare Lal and Bishen Sarup, who are minors. The suit was one for redemption of a mortgage. The claim as amended was against four brothers of whom two, the present (applicants, were minors and the other two were adults. The applicants were represented in the litigation by their mother as guardian ad litem. The present application was based on an allegation inter alia that their mother was insane and, therefore, could not represent them. The learned Munsif rejected this contention. The learned District Judge held that the mother, Musammat Bhagirathi, if not actually insane, was of a childish and emotional temperament and, therefore, not a fit person to represent the minors. It is not open to me sitting as a Court of revision to go behind this finding. The learned judge held that he must decide the case upon the assumption that there was no guardian ad litem appointed for the minors. He then went on to consider the question whether the minors had been prejudiced by the fact that they were not represented and holding that they were not, as the case had been fully contested by their adult brothers, he refused to set aside the decree. If this had been a subsequent suit to set aside the decree this point might, under the rulings of this Court, have been material. In an application under Order IX, Rule 13, however, the only point which the Judge had to consider was whether the defendants were prevented by any sufficient cause from appearing. Order IX, Rule 13 is very clear on this point. If the minors were not represented then clearly there was sufficient cause for their non-appearance and the District Judge was bound by the provisions of the rule to order the restoration of the suit. In not doing so he has failed to exercise a jurisdiction vested in him by law which he was bound to exercise. I, therefore, allow the application, reverse the orders of both the Courts below and setting aside the ex parte decree so far as it affects the minors, direct the Trial Court to restore the case to the file and after taking steps to appoint a proper guardian for the minors to dispose of it according to law. The respondents will get their costs of this application in all these Courts.


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