1. This is an appeal under the Orissa High Court Order, against the judgment dated 16-12-1949 in S. A. 113 of 1949, of our learned brother Das, J., (as he then was) declaring the title of plaintiffs No. 2 (Kinu Charan Padhan) to a moiety of the properties in suit and dismissing the claim of plaintiff No. 1 (Durga Charan Das) to the properties.
2. The facts giving rise to the litigation ape briefly these. The defendant (who is the appellant before us) was the landlord of a holding measuring .072 of an acre, of which plaintiff No. 1, Durgacharan, and Baidyanath, the father of plaintiff No. 2, were the recorded tenants. In Rent Suit No. 5676 of 1933-34, he obtained a decree for arrears of rent against plaintiff No. 1, and Baidyanath. In execution of that decree the holding was put up for sale, was purchased on 27-11-1936 by the decree-holder, and delivery of possession was taken, through Court, on 29-7-1937. Five years later the' present suit was raised by Durga-charan and Kinu Charan Padhan (plaintiff No. 2) the minor son of Baidyanath, who had died in the meanwhile, and plaintiff No. 3, Pari Bewa, widow of one Banamali Padhan who claimed some interest in the suit property. The case set out in the plaint is that Baidyanath, father of plaintiff No. 2 died soon after the passing of the rent decree and that his minor son, plaintiff No. 2, was not adequately represented in the execution proceedings. There were a number of other allegations such as fraudulent suppression of notices and irregularity in the conduct of the sale, etc., but these were found against the plaintiffs by all the Courts. It was also found that plaintiff No. 3 had no interest in the suit property. The only point that is material for the decision of this appeal is whether plaintiff No. 2 who was admittedly a minor during execution, was adequately represented in the execution proceedings by his mother as his guardian.
3. It has been found by the Courts of fact that the notice under Order 21, Rule 22, C.P.C., was issued and was actually served on plaintiff No. 1 as well as upon the plaintiff No. 2, and was also tendered to the mother of the latter. It has further been found that notices of attachment and proclamation were duly, served. The learned Munsiff who tried the suit, as well as the learned District Judge who heard the appeal, have both held that the minor was adequately represented in the execution proceedings as he himself received the notices and his mother was aware of the proceedings going on against him. In this view they directed the dismissal of the plaintiff's suit in its entirety.
4. On second appeal Das, J., held that on the records there was no order of appointment of the mother of the second plaintiff as his guardian, nor was there anything else, on the records, to show that the mother of the minor judgment-debtor took part, or had knowledge of, the proceedings otherwise and therefore came to the conclusion that the minor judgment-debtor was wholly unrepresented in the execution proceedings and that therefore the sale was vitiated and would not bind his interest in the Estate. In arriving at this decision reliance was placed mainly on two cases which have been referred to in the judgment, namely SHIVA SAHAI RAM v. SUNDAR MANDAL' AIR 1948 Pat 91 and 'KRISHNA PERSHAD SINGH v. MOTI CHAND', 40 Cal 635.
5. In the first of these cases the facts were that two of the minor defendants were represented by a Pleader guardian-ad-litem appointed in the suit. In the subsequent proceedings the pleader guardian was wholly ignored & an adult brother of the minors was proceeded against as representing them in execution. In these circumstances, it was held that that brother had no authority to represent the minors in execution as the pleader guardian who had been appointed earlier to represent the minors had not been duly discharged by the Court and that the procedure adopted by the decree-holder was in violation of Order 32, Rule 3, Sub-rule (5) of the C.P.C., which provides that a person appointed as guardian for a minor under Sub-rule (1) shall, unless his appointment is terminated by retirement, removal, or death, continue as such throughout all proceedings arising out of the suit, including proceedings in execution.
In the second case there were a number of irregularities in the actual conduct of the sale, but the point that actually fell for decision was whether the mother of the minor judgment-debtor was competent to apply for setting aside a Court sale when there was a Court guardian appointed for the minor in the suit. In that case the suit was instituted in the Court at Banaras during the lifetime of the father of the minor and the Nazir of that Court was appointed a pro forma guardian for the purposes of the suit. The execution case, however, was started in the Court of the Deputy Commissioner, Hazaribagh, and the Court guardian refused to appear at that place and in fact he never appeared at all, so that on and after the death of the judgment-debtor there was no representation at all of the minor till the actual sale. On the day of sale the minor's mother applied for adjournment but her prayer was refused. Thereafter, as the natural guardian of the infant-son, she presented a petition for setting aside the sale. The question was whether she was competent to file such a petition, and their Lordships held that inasmuch as the interests of the infant with regard to the properly were not represented at all, either by the Court Guardian or by the Court of Wards which assumed the management of the properties when the execution proceedings were going on at Hazaribagh, it was open to the mother, as the natural guardian, to appear in the name of the infant to protect the property from sale, and that it was the only way of preventing his interests with regard thereto being sacrificed. Their Lordships have not decided, in that case, that mere non-representation of the minor in execution proceedings is sufficient to impugn the sale itself as a nullity.
With great respect to the learned Judge, I am of opinion that the two cases relied on by him are distinguishable and have no application to the facts of this case. The argument on behalf of plaintiffs is that the provisions of Order 32, C.P.C., relating to the appointment of a guardian-ad-litem, on behalf of a minor, have not been strictly observed by the decree-holder in execution proceedings. Admittedly, there is no order of appointment of the second plaintiff's mother as his guardian, nor does it appear that she consented to her being so appointed. The return made by the Amin (Ex. B) shows that the Rule 22 notice was served upon plaintiff No. 1, and was tendered to the mother of plaintiff No. 2 who had been represented in the execution petition as minor in the guardianship of his mother. Plaintiff No. 1, is reported to have told the Amin that as they were all living in on joint family notice may be served on plaintiff No. 2. It was accordingly served upon plaintiff No. 2 and the return bears his signature. Plaintiff No. 2 did not go into the box to deny it, and the Courts below have accepted the decree-holder's evidence that it was he who actually signed the notice. In these circumstances the question is whether the sale can be set aside on the ground that no formal order, appointing the mother of plaintiff No. 2 as his guardian, is forthcoming from the records, or on the ground that the guardian did not give her consent to her being so appointed. It is nobody's case that the decree itself had been improperly obtained against the father of the minor. The question is whether, in case where a proper and valid decree has been obtained against the estate of a minor judgment-debtor that estate is properly represented in the execution, proceedings culminating in the sale.
In 'MUNSHI MANNU LAL v. GULAM ABBAS', 37 Ind App 77 PC, it was held that it must be presumed in the (absence of ?) evidence to the contrary, that everything was regularly and properly done in a Court. It was assumed in that case that there was no affidavit asking for the appointment of guardian for the infant judgment-debtors. Nevertheless their Lordships held that it was impossible to hold that the infants were not properly represented at the time.
In the earlier case of 'MT. BIBI WALIAN v. BANKI BEHARI', 30 Ind App p. 182 PC, their Lordships of the Judicial Committee made observations much to the same effect. In that case, too, there was no formal order appointing a guardian to represent the minor defendants in the suit, but the mother of the judgment-debtors was shown as the guardian throughout the proceedings. The Court (?) was described as the guardian and she was so described in the decree as well as in the execution proceedings. With regard to the service of summons the peon's report was accepted as proving service. In these circumstances, their Lordships were of opinion that the minor judgment-debtors were substantially represented in the suit, and negatived the contention raised by them that there was fraud, and held if the Court recognised the mother as the guardian of the minors by registering the suit, they should be held to have been effectively represented by their mother inspite of the absence of a formal order appointing the mother as guardian. It was held in that case that even though no notice was served upon the infants personally or on their mother, the service of notice on the only adult male member of the family was sufficient to represent the estate of the minors and the alleged irregularity would not by itself be enough to justify the setting aside of the sale in the absence of proof that prejudice had been caused by the irregularity complained, of
As was observed in the leading case of 'KHAIHAJMAL v. DAIM', 32 Ind App p. 23 (PC) :
'the Indian Courts have exercised a wide discretion in allowing the estate of a deceased debtor to be represented by one member of the family, and in refusing to disturb judicial sales on the mere ground that some members of the family who are minors were not made parties to the proceedings, if it appears that there was a debt justly due from the deceased and no prejudice is shown to the absent minors.'
In 'PHANI BHUSAN v. SURENDRA NATH', 35 Cal L J 9, the judgment-debtors were co-tenants of holding sold under the Bengal Tenancy Act in execution of a decree binding upon the tenants. The judgment-debtors were living in the same old homestead as in the case before us; and one of the judgment-debtor was a minor and had not been properly represented in execution proceedings. It was held in that case it would be 'a refinement of technicality' to say that all the co-tenants were not duly notified that the decree was to be executed. The provisions of Order 32, C.P.C., relating to suits by or against minors have no direct application to proceedings in execution after the rights of the parties have merged in a decree. It is not therefore incumbent upon the decree-holder to adopt the procedure laid down in Order 32 for representing a minor judgment-debtor through a Guardian, strict observance of the procedure of the rules of Order 32. C.P.C., is required only in the case of suit. In deciding whether the minor's interests are properly represented the Courts have to look to the substance of the transaction, and judicial sale should not be set aside on the mere ground that a formal order of appointment of the guardian is not forthcoming. Once the notice under Order 21, Rule 22, C.P.C., is complied with, then the Court has jurisdiction to put up the property to sale, and the sale does not suffer from the infirmity of lack of jurisdiction. Nor can other violation of a rule of procedure be deemed to be such as to vitiate the sale altogether.
This case has been followed in several cases of the Lahore High Court. See, for instance. 'BANSI DAR v. MAHAMMED SULAIMAN', AIR 1926 Lah 490, where it was laid down that after the rights of the parties have merged in a valid decree the omission to appoint a guardian-ad-litem of the minor does not vitiate a sale in execution. In 'FIRM ANNU MAL v. BRIJ LAL', AIR 1941 Lah 827, it was held that where the interests of a minor have in effect been represented though not in form, as when his interests are identical with those of other members of his family, a sale in execution would not be set aside. In the Madras High Court also the same view appears to have been adopted and 'PHANI BHUSAN'S CASE', has been followed.
In 'RAMANATHAN CHETTIAR v. RAMANATHAN CHETTIAR', AIR 1929 Mad 275 at p. 282 where all the cases have been summarised it was laid down that if there is already some adult on the record, like for instance the manager of the joint family' who does adequately represent the estate and its interests the mere omission to appoint a guardian for the minor will not invalidate the proceedings; but where the estate interests are in the minor alone, and he is not represented by a guardian then the proceedings will not bind him. Needless to say that 'PHANI BHUSAN'S CASE', has been recognised as good law in the subsequent cases that came up before the Calcutta High Court. In 'JINNAT ALI v. KAILASH', AIR 1924 Cal p. 847 the guardian's consent was not obtained and there was no proof of the appointment of the guardian. It was held that this defect in the proper representation of the minor in execution proceedings would not vitiate the sale. To the same effect are the cases reported in 'MATIUR RASUL v. ABDUL SAYYID', AIR 1926 Cal 109, where it was held that the non-representation of an infant by a guardian in execution proceedings would not, by itself, be a sufficient ground for avoiding en execution sale since such matters stand on a different footing from cases in which the provisions of Order 32, Civil P. C. have not been observed in a suit by or against minors. In 'RAKHAL CHANDRA DE v. KUMUDUNI', AIR 1927 Cal 930, it was held that if the minor was, in fact, duly represented in the suit a sale in execution would not be set aside if there was no due representation of the minor in execution proceedings.
6. A review of these authorities goes to show that the test whether the non-representation of a minor in execution proceedings would vitiate the sale is whether in fact the estate has been represented or not. If there is some adult male member of the family who represents the estate, the sale must be upheld although there is no proper appointment of a guardian for the minor or he has not been properly represented otherwise. In this case, it is clear on the evidence that plaintiff No. 1 represented that he and plaintiff No. 2 were living in a joint family. It is also clear that the minor himself received the notice personally. The decree-holder himself impleaded the mother of the minor as his guardian. Having regard to all these circumstances, I am inclined to hold, that both the minor and his estate were in fact properly represented in the execution proceedings and that the Court sale would therefore bind his interests.
7. The judgment under appeal is set aside. The judgment and decree passed by the trial Court are affirmed. The suit as a whole is dismissed with costs throughout.
8. I agree.