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Babu and ors. Vs. Smt. Sunder Bai and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Revision Petition No. 30/1982
Judge
Reported in1982WLN616
AppellantBabu and ors.
RespondentSmt. Sunder Bai and ors.
DispositionPetition dismissed
Cases ReferredIn Mussammat Bibi Walian and Ors. v. Banke Behari Pershad Singh and Ors.
Excerpt:
.....in the suit, it must be held that bansilal was recognised by the court as the defacto guardian of babu minor defendant and impliedly assented to his appointment as a guardian ad-litem of the minor defendant babu.;revision dismissed. - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of..........a decree was obtained by the opposite parties against bansilal laxmilal, radheyshyam, jagdish and babu minor, under the guardianship of his elder brother bansilal, on august, 4, 1979 from the court of munsif, nimbahera, by which the judgment, debtors were directed to construct a drain 1' wide and 42' long, on the northern wall of their house for the flow of rain water from the roof of the plaintiff's house, within a period of one month. all the defendant judgment-debtors are sons of babu and it is not disputed that bansilal is the eldest amongst them. the decree-holders filed an execution application on september 13, 1979, in which babu, smt. dakhi widow of babu and ghanshyam, minor son of babu under the guardianship of his mother smt. dakhi bai, filed an objection petition under.....
Judgment:

Dwarka Prasad Gupta, J.

1. In this revision petition, learned Counsel for the petitioners urged that the executing court erroneously refused to. entertain the objections filed by them about the execution of the decree, under Section 47 of the Code of Civil Procedure.

2. A decree was obtained by the opposite parties against Bansilal Laxmilal, Radheyshyam, Jagdish and Babu Minor, under the guardianship of his elder brother Bansilal, on August, 4, 1979 from the court of Munsif, Nimbahera, by which the judgment, debtors were directed to construct a drain 1' wide and 42' long, on the northern wall of their house for the flow of rain water from the roof of the plaintiff's house, within a period of one month. All the defendant judgment-debtors are sons of Babu and it is not disputed that Bansilal is the eldest amongst them. The decree-holders filed an execution application on September 13, 1979, in which Babu, Smt. Dakhi widow of Babu and Ghanshyam, minor son of Babu under the guardianship of his mother Smt. Dakhi Bai, filed an objection petition under Section 47 C.P.C. It was stated by Smt. Dakhi Bai and Ganshyamj that they were not nude parties to the suit and as such the decree could not be executed against them and their property. On behalf of Babu, it was stated in the objection petition that Bansilal was not his legal guardian, and as he was a minor at the time of institution of the suit, it was claimed on his behalf that his mother Smt. Dakhi Bai was his natural guardian and in her presence his eldest brother Bansilal had no right to represent the minor defendant Babu in the suit. On this ground, it was urged that the decree was inoperative and null and void, so far as the interest of Babu was concerned. The trial court held that the objection petition filed by the three petitioners was not maintainable under Section 47 C.P.C. and rejected the same.

3. So far as Dakhi Bai and Ganshyam are concerned, learned Counsel for the petitioners was unable to show as to how they were entitled to maintain an objection petition under Section 47 C.P.C. On their own showing, Smt. Dakhi Bai and Ganshyam were not made parties to the suit and as such no decree was passed against them. Section 47 C.P.C. permits all questions, arising between the parties to the suit in which the decree was passed or their representatives and relating to the execution, discharge or satisfaction of the decree, to be raised before the court executing the decree. As the above named two persons were not made parties in the suit, in which the decree was passed, they could not raise any question under Section 47 C P.C. for determination by the court executing the decree. If any rights of Smt. Dakhi Bai or Ganshyam are adversely affected by the decree, they could ventilate their grievance, if any, by means of a separate suit, if they so like. Babu was made a party defendant to the suit in which decree was passed, but if his case is that he was not duly represented in the suit, then he also could not raise an objection under Section 47 C.P.C. before the executing court. As on his own showing, he was not properly made a party to the suit.

4. In Mst. Rashid-un-nisa v. Mohd. Ismail Khan and Ors. 36 Indian Appeals 168, the question for consideration before their Lordships of the Privy Council was as to whether a suit filed by a minor was maintainable for a declaration that two decrees and three sales made in execution, affecting her share in her father's estate, were invalid as against her on the ground that she was not properly represented in the proceedings which resulted in the passing of the decree and the execution proceedings. Their Lordship of the Judicial Committee observed as under:

Section 44 (now Section 47) of the Civil Procedure Code applies to questions arising between parties to the suit in which the decree was passed, that is to say, between parties who have been properly made parties in accordance with the provisions of the Code. Their Lordships agree with the Subordinate Judge that the appellant was never a party to any of these suits in the proper sense of the term.

In the aforesaid case their Lordships held that an separate suit was maintainable on behalf of the minor and the order passed by the Allahabad High holding that the execution proceedings could not be impeached by means of a separate suit, but by raising objections to the execution of the decree, was set aside.

5. In Yasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman and Ors. : [1971]1SCR66 their Lordships of the Supreme Court held that if the objection about the jurisdiction of the executing court was apparent on the face of the record, such then an objection could be allowed to be raised in execution proceedings under Section 47 C.P.C., but if the objection required examination and decision after a trial then it should be raised by means of a separate suit. The following observations of their Lordships may be reproduced in the connection:

When a decree which is a nullity, for instance, where it is passed without bringing the legal representatives on the record of a person who was dead at the date of decree, or against a ruling Prince without a certificate, is sought to be executed, an objection in that behalf may be raised in a proceeding for execution. Again when the decree is made by a Court which has no inherent, jurisdiction to make it, objection as to its validity may be raised in an execution proceeding of the objection appears on the face of the record: where the objection as to the jurisdiction of the court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not been raised, the executing Court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction.

6. Even if the objection raised on behalf of Babu is examined on its merits, the allegation made in the objection petition is that the procedure prescribed in Order 32 rule 3 CPC was not followed in respect of the appointment of a guardian of the minor defendant Babu. It is alleged that neither an application nor an affidavit was filed under Order 32 Rule 3 CPC, nor the Court passed any order appointing any person as a guardian of the aforesaid minor. It was argued that in the presence of a natural guardian namely, his mother Dakhi Bai, Bansilal could not have properly represented in law the minor Babu. It has not been alleged on behalf of Babu that his elder brother Bansilal had any interest adverse to Babu in respect of the questions involved in the suit or that he had neglected the conduct of the case on behalf of the minor defendant or that there was any fraud or collusion between Bansilal and the decree holders. On the other hand, it is undisputed that of all the five brothers who were made parties to the suit, Bansilal was the eldest and Babu was the youngest & their interest in the suit property is identical & as such a joint written-statement was filed on behalf of all the defendants including the minor Babu. Bansilal acted as guardian of Babu minor defendantar throughout the proceedings in the suit. It may be true that no formal order regarding the appointment of the guardian an litem, as laid down in Order 32 rule 3 was CPC, passed in the suit, but all the same it cannot be disputed that Bansilal was recognised by the court as the guardian ad litem of the minor defendant Babu for the purpose of the suit. There is no law providing that the natural guardian must invariably be appointed as the guardian of the minor defendant for the purpose of the suit. Order 32 Rule 3 CPC authorises the court to appoint a proper person to be the guardian of the minor defendant for the suit and it is the duty of the court to see that the proposed guardian has no interest in the questions in controversy in the suit adverse to that of the minor and that he is a fit person to be so appointed. It has not been alleged on behalf of Babu before the executing court that his eldest brother Bansilal had any interest adverse to him in respect of the questions in controversy in the suit or that Bansilal was not a proper person or a fit person to be appointed as his guardian for the purposes of the suit. The only defect pointed out is that the formal procedure regarding appointment of Bansilal as guardian ad litem of minor defendant Babu was not followed, although Bansi Lal was shown as the guardian of minor Babu in the plaint and ever since the service of the summons, he acted as the guardian of Babu throughout the proceedings in the suit. As a matter of fact, a joint written-statement was filed by all the defendants & Bansilal acted on his own behalf and on behalf of minor defendant Babu in filing the written statement and in conducting the suit. In my view, the formal defect pointed out by the learned Counsel for the petitioners cannot be considered to be one of substance which could have the effect of rendering the decree passed in the nullity. The true purpose of the provisions contained in Order 32 Rule 3 CPC is that the interest of the minor defendants in the suit should be properly safeguarded. There can be no doubt that ordinarily the court should strictly adhere to the procedure prescribed in Order 32 Rules 3 and 4 CPC regarding the appointment of a guardian ad litem. But in such a case as the present one, where the minor's interest was effectively represented in the suit by his elder brother Bansilal and no objection at all was raised on his behalf at any stage in the suit. It has not been urged on behalf of Babu that the interest of the minor was not properly looked after in the suit or that any prejudice was caused to the minor defendant on account of lack of a formal appointment order of the guardian for the proceedings in the suit. In such circumstances, it cannot beheld that the decree was rendered a nullity because the minor defendant was not properly represented.

7. In Mussammat Bibi Walian and Ors. v. Banke Behari Pershad Singh and Ors. 30 Indian Appeals 182 it was observed by their Lordships of the Privy Council that the provisions of Section 443 of the old Code of Civil Procedure, which are equivalent to Order 32 Rule 3 CPC, 1908. which directs the court to appoint a proper guardian to protect the interest of a minor suitor must be strictly followed and that it must be impressed upon all courts in India that it is necessary for the Courts to see that a proper guardian is appointed of the minor suitor to protect his interest, but it was also observed by their Lordships in the aforesaid case that it is quite another thing to say that a defect in following the procedure for appointment of a guardian of a minor suitor should be necessarily fatal to the proceedings. Where it appears that the minor's interest was effectively represented in the absence of a formal order appointing a guardian-ad-litem and the defect of absence of service of summons on the minor has not caused any prejudice to him, then such defects are at the most irregularities which are curable. It cannot be hell in the present case that on the face of the record the-minor defendant Babu was not represented in the suit by a proper guardian. Bansilal, who was his eldest brother and in his capacity as the Karta of the joint Hindu family was obviously properly qualified to act as the guardian of the minor defendant Babu in respect of which related to the joint family property. As observed earlier, Bansilal did not have any interest adverse to that of his minor brother Babu. Merely because a formal order was not passed by the court appointing Bansilal as a guardian-ad-litem of Babu in the suit, the same could not vitiate the proceedings and render the decree a nullity because Babu defendant was effectively represented in the suit by his elder brother Bansilal. It is not the case of the petitioners that Bansilal. It is not the case of the petitioners that Bansilal failed to take any step in the proceedings in the suit which ought to have been taken by a lawfully appointed guardian or that he was negligent in performing the duties of a guardian, and it cannot be lost sight of that the interest of Bansilal and Babu defendants were identical, so far as the question in controversy in the suit are concerned. The mere fact that a decree has been passed against Babu cannot by itself nullify the representation of Babu defendant by Bansilal. As the trial court allowed Bansilal to represent Babu defendant through the proceedings in the suit it must beheld that Bansilal was recognised by the Court as the de facto guardian of Babu minor defendant and impliedly assented to his appointment as a guardian ad-litem of the minor defendant Babu.

8. In view of this matter, I find no substance in this revision petition and the same is dismissed.


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