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Ballabhdas Saligram and anr. Vs. Thakur Parmal Singh Rai Padam Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberSecond Appeal No. 216 of 1960
Judge
Reported inAIR1961MP36
ActsCode of Civil Procedure (CPC) , 1908 - Sections 47
AppellantBallabhdas Saligram and anr.
RespondentThakur Parmal Singh Rai Padam Singh and ors.
Advocates:Swami Saran, Adv.
DispositionAppeal dismissed
Excerpt:
- - they did not proceed against santosh singh and chhatar singh, this time ballabhdas and saligram raised the same objections, but they remained unsuccessful in all the revenue courts......the absence of necessary material) that the minors having not been represented by a guardian, the decree passed against them was null and void, as if they were not parties to the suit. a distinction must however be made between the remedies available to the minors who were not so represented and those available to the appellants who were not minors. by no stretch of argument can it be said that the plaintiffs must also be deemed not to be parties to the suit just because a guardian was not appointed for shankar singh's legal representatives. that being so, the plaintiffs could not bring this suit. shri swami saran's argument that if the revenue decree is a nullity as against the minors the plaintiffs would be deprived of their right of contribution from the legal representatives of.....
Judgment:

Shiv Dayal, J.

1. Shri Swami Saran heard. This appeal arises out of a suit for setting aside a de-tree passed by the revenue Courts (Commissioner and Board of Revenue) under Section 312 of the Qua-noon Mal. That suit was instituted by Parmal Singh and Madho Singh against Ballabh Das, Saligram and Shankar Singh initially. During the pendency of that suit Shankarsingh died. San-tosh Singh and Chhata Singh, his minor sons, were brought on record instead of the deceased. An ex parte decree was passed in favour of Parmal Singh and Madho Singh. Execution was taken out of that decree. Objections were raised by Santosh Singh and Chhatar Singh, but they were overruled. Thereafter Parmal Singh and Madho Singh proceeded in execution against Ballabhdas and Saligram alone; they did not proceed against Santosh Singh and Chhatar Singh,

This time Ballabhdas and Saligram raised the same objections, but they remained unsuccessful in all the revenue Courts. Thereafter this civil suit was instituted alleging that on the death of Shankarsingh, Santosh Singh and Chhatar Singh were brought on record, but they were minors and a guardian was not appointed according to law. This suit was dismissed by the trial Judge and the plaintiffs' appeal has also been dismissed. The first question that arises is whether such a civil suit can be instituted, and whether Ballabhdas and Saligram had no locus stanch.

2. The plaintiffs in this suit were defendants in the revenue suit. They were not minors. A decree was passed against them which attained finality. As such they have no right to say that the other two defendants were minors and a guardian was not appointed for them. This objection is open to the minors only. At the most it can be said (I do not hold so in the absence of necessary material) that the minors having not been represented by a guardian, the decree passed against them was null and void, as if they were not parties to the suit. A distinction must however be made between the remedies available to the minors who were not so represented and those available to the appellants who were not minors. By no stretch of argument can it be said that the plaintiffs must also be deemed not to be parties to the suit just because a guardian was not appointed for Shankar Singh's legal representatives. That being so, the plaintiffs could not bring this suit. Shri Swami Saran's argument that if the revenue decree is a nullity as against the minors the plaintiffs would be deprived of their right of contribution from the legal representatives of Shankarsingh is without substance. From whatever point of view the plaintiffs wanted toassail the decree, their only remedy was by way of appeal, revision or review from the decree itself in the revenue courts or under Section 47 in the execution department. This suit is barred by Section 47 of the C. P. C., and, since the decree was passed under Section 312 of the Quanoon Mal and no proceedings were taken either by way of appeal, revision or review before the revenue courts, this civil suit was also barred under Section 377 of the Quanoon Mal.

3. Appeal is, therefore, dismissed in limine.


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