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Bhagwan Dayal and anr. Vs. Param Sukh Dass - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in36Ind.Cas.366
AppellantBhagwan Dayal and anr.
RespondentParam Sukh Dass
Cases ReferredRaj Kumar Roy v. Tiara Krishna Chackravarti
Excerpt:
.....of suit--jurisdiction--inherent power--suit against minor--court, duty of, to appoint guardian ad litem--limitation. - interpretation of statutes definition clause: [markandey katju & h.l. dattu, jj] meaning given to an expression in one statute cannot be applied to another statute. - 179. it may be noted that the only ground upon which the suit was based was that the order appointing the amin as guardian of the plaintiffs was bad for the many reasons set forth in the plaint, and upon that ground the proceedings taken in the suit after the date of the said order were invalid and bad in law. no issue was framed in that suit as to whether the mortgage-debt in suit was a good and valid debt binding upon the minors and whether the mortgage-deed in suit was duly executed and..........the applicants.'3. a minor against whom a decree has been made without the appointment of a proper guardian for him has several remedies open to him. he may, if the facts of the case justify, in that very suit:(a) appeal against the decree,(b) apply far a re-hearing under order ix, rule 13,(c) apply for a review of judgment, or(d) apply for an order under rule 5(2) of order xxxii of the code,according as the circumstances of the case may permit. he has, of course, to initiate suitable proceedings for being duly represented by a guardian or next friend in these proceedings. he has in addition to these four remedies according to the cases another, viz., a suit on the lines indicated in the case of sham lal v. ghasita 23 a. 459. in this case the petitioners sought their remedy by.....
Judgment:

Sunder Lal, J.

1. 1911 Param Sukh Dass instituted a suit against Parbhu Lal and Bhagwan Das minors and their uncle Raghubar Sahai on foot of a mortgage, dated 17th September 1904, for sale of property. Raghubar Sahai, the uncle, was namgd by him as a fit and proper person to be appointed as guardian of his minor nephews. Raghubar Sahai refused to act as guardian and in doing so he informed the Court that the minors were living with their mother, and not (with him. The Court thereupon appointed the Amin of the Court as the guardian ad litem of the said minors and made an ex parte decree for sale on 30th August 1911. An application was made on behalf of the plaintiffs for setting aside the ex parte decree on 8th June 1912. The Court, however, rejected the application. The plaintiffs then brought a suit to set aside the ex parte decree, on the ground that 'the appointment of the plaintiffs' guardian as made was improper and contrary to law and the plaintiffs had no knowledge of the suit aforesaid and on account of this they were deprived of their right to set up a lawful defence.'

2. The suit was dismissed by the two Courts below, but on 19th January 1915 a Division Bench of this Court presided over by the Hon'ble the Chief Justice and Mr. Justice Banerji decreed the plaintiffs' suit. The judgment of this Court is reported as Bhagwan Dayal v. Param Sukh Dass 27 Ind. Cas. 632 : 13 A.L.J. 179 : 37 A. 179. It may be noted that the only ground upon which the suit was based was that the order appointing the Amin as guardian of the plaintiffs was bad for the many reasons set forth in the plaint, and upon that ground the proceedings taken in the suit after the date of the said order were invalid and bad in law. This Court set aside the decree in the suit on that ground alone. The only point in controversy between the parties in that suit was, whether the appointment of the Amin as guardian ad litem of the minors was proper and whether by reason of the defect in his appointment, the proceedings in the suit which followed and led up to the decree were invalid and void in law. No issue was framed in that suit as to whether the mortgage-debt in suit was a good and valid debt binding upon the minors and whether the mortgage-deed in suit was duly executed and capable of enforcement as against them. The decree in that suit was set aside on grounds other than those which were concerned with the merits of the claim as urged in that suit. The decree for sale in the suit on the mortgage having been set aside by this Court, on the grounds mentioned above, the plaintiff applied on 26th March 1915 to the Court below to restore the suit to the tile of pending cases and to proceed to hear and dispose of the same according to law, after appointing a fit and proper person to act as guardian ad-litem of the minor defendants. By its order dated 15th May 1915, the Court below has directed the suit to be restored to the file of pending cases so far as the minor defendants are concerned and directed the plaintiff to take proper steps to appoint a guardian ad litem for the said minors, to enable it to proceed with the further hearing of the case. Mr. Uma Shankar Bajpai has applied for the revision of the said order and has asked us to set aside the said order, on the ground that 'the Court below had no jurisdiction to revive the proceedings of the original suit against the applicants.'

3. A minor against whom a decree has been made without the appointment of a proper guardian for him has several remedies open to him. He may, if the facts of the case justify, in that very suit:

(a) appeal against the decree,

(b) apply far a re-hearing under Order IX, Rule 13,

(c) apply for a review of judgment, or

(d) apply for an order under Rule 5(2) of Order XXXII of the Code,

according as the circumstances of the case may permit. He has, of course, to initiate suitable proceedings for being duly represented by a guardian or next friend in these proceedings. He has in addition to these four remedies according to the cases another, viz., a suit on the lines indicated in the case of Sham Lal v. Ghasita 23 A. 459. In this case the petitioners sought their remedy by suit and obtained a decree from this Court on 19th January 1915 vide Bhagwan Dayal v. Param Sukh Das 27 Ind. Cas. 632 : 13 A.L.J. 179 : 37 A. 179. The question now is what is the remedy of the plaintiff mortgagee, who is respondent in this case. His case on the mortgage, on foot of which he had brought his suit, has not been tried by this Court. All that has been done by this Court is to set aside or discharge the decree which the plaintiff had obtained on 30th August 1911, without going into the question of the execution or the validity of the mortgage in suit. The plaintiff-respondent was entitled to have his claim on the mortgage adjudicated upon either in the suit brought by him, or in the suit brought by the minors, which resulted in the decree of 19th January 1915. The Courts in India have adopted one course or the other according as the exigencies of the case demanded. Where, for example, a sale in execution of the decree has taken place and the rights of third parties as purchasers have come into existence which could not be properly adjudicated upon in the suit on the mortgage, the Courts have sometimes gone into the merits of the claim on the mortgage as well and passed a decree such as the circumstances of the case required. As nn illustration of a case of this class I may refer to the case of Durgapersad v. Keshopersad Singh 8 C. 656 (P.C.) : 11 C.L.R. 210 : 9 I.A. 27 : 4 Sar. P.C.J. 332 : 6 Ind. Jur. 272 : 4 Ind. Dec. (N.S.) 422. On the other hand, in some cases the Courts have merely discharged the decree obtained against the minors: Kundan Lal v. Gajadhar Lal 4 A.L.J. 698 : A.W.N. (1907) 248 : 29 A. 728. Another instance of a suit to set aside a decree obtained against a minor on foot of a compromise to enter into which no leave had been obtained by her guardian is the case of Manohar Lal v. Jadunath Singh (11) 28 A. 585 : 4 C.L.J. 8 (P.C.) : 8 Bom. L.R. 489 : 10 C.W.N. 898 : 9 O.C. 219 : 1 M.L.T. 210 : 16 M.L.J. 291 : 3 A.L.J. 710 : 33 I.A 528. The decree passed in that suit by the Judicial Commissioner of Oudh was to set aside the decree in its entirety and went on to declare that the suit would have to be decided afresh.' Their Lordships of the Privy Council, however, modified the decree and held 'that it will be quite sufficient if there is a declaration that the compromises and decrees are not binding upon the minor, and that he is remitted to his original rights.' In a later case, Kunwar Partab Singh v. Bhabuti Singh 21 Ind. Cas. 288 : 35 A. 487 : 17 C.W.N. 1165 : (1913) M.W.N. 785 : 14 M.L.T. 299 : 25 M.L.J. 492 : 16 O.C. 247 : 18 C.L.J. 384 : 15 Bom. L.R. 1001 : 11 A.L.J. 901 : 40 I.A. 182 (P.C.), their Lordships passed a decree on similar lines. The minor was restored to the same position in which he was on the date on which the suit was filed against him. Under the Code of Civil Procedure a suit may be instituted against a minor by name. It is the duty of the Court to appoint a proper guardian ad litem. The institution of the suit is complete, and saves limitation, but its further progress depends upon the appointment of a suitable guardian ad litem. In this case proceedings taken to appoint such guardian ad litem have been pronounced to be invalid, and the suit cannot proceed unless such proceedings are properly initiated and completed. The Court, whose duty it is ultimately to see that a proper guardian ad litem is appointed, has jurisdiction to revive the suit. If any authority is required, it is to be found in Section 151 of the present Code, under which the Courts are declared to possess inherent powers to make such orders as may be necessary for the ends of justice. The authority cited in the order of the Court below is in point Raj Kumar Roy v. Tiara Krishna Chackravarti 10 Ind. Cas. 355 : 15 C.L.J. 217 and is in accordance with what has been done in some cases in this Court. I would, therefore, dismiss the application for revision with costs.

Walsh, J.

4. I agree.


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