1. The petitioners are minors. They were defendants in O.S. No. 63 of 1941 on the file of the District Munsiff of Rajahmundry. That suit was a mortgage suit and the plaintiff obtained a decree for sale. The property was brought to sale at a court-auction on the I2lh October, 1943. On the 1st of November, 1943, the petitioners represented by their mother filed an application under Order 21, Rule 90. In the suit, their uncle had been appointed guardian ad litem and that appointment had never been cancelled. On the 22nd November, 1943, the petitioners filed a security bond in the proceedings under Order 21, Rule 90. The bond was returned to them on the 26th November, 1943. The reason for that return is stated as follows in an endorsement on the affidavit:
1.The security bond should clearly state whether the property described belongs exclusively to the surety or whether it belongs to the minor judgment-debtors.
2. An affidavit stating the interest of the surety in the property should be filed.
This endorsement closed with the following remark:
Returned. Time till 3-12-43.
There is a further endorsement on the affidavit under date 3rd December, 1943, as follows:
An affidavit in support of the bond is herewith filed. It is now stated, in the security bond that the surety has sole and absolute rights in the property offered as security. The bond may be accepted. Represented.
A further endorsement appears on the affidavit dated 6th December, 1943, which reads as follows:
The petition was called and rejected on 3rd December, 1943, as there was no representation Returned.
It is clear from these endorsements-and the entries in the B Diary substantially confirm them-that after time had been granted until 3rd December for the filing of the further affidavit the case was called on that day and dismissed for want of appearance. The endorsements also show that in fact on some time on that day, namely, the 3rd December, 1943, the necessary affidavit was filed and accepted presumably in the office of the Court.
2. The petitioners applied to have this order of dismissal set aside but their application was rejected on the ground that Order 9, Rule 15, Civil Procedure Code, had no application to such a matter. They then filed an appeal against the order of the 3rd December, 1943. Notice of the appeal was issued to the present respondents and it will be appreciated that this was the first occasion on which the respondents had an opportunity of raising any objection to the application under Order 21, rule go of the Civil Procedure Code. On appeal in the lower Court, the respondents objected that the application under Order 21, Rule 90 was bad inasmuch as in it the minors were represented by their mother whereas their uncle was the guardian ad litem appointed by the Court. Reliance was placed on Order 32, Rule 3(a) of the Code.
3. The learned District Judge upheld that objection and also held against the petitioners on their contention that the application could not properly be dismissed in view of the fact that they had time within which to file the required additional affidavit until the end of the day fixed, namely, 3rd December, 1943.
4. With regard to the first point raised by the petitioners, I have no hesitation in holding that the dismissal of the petition on that ground was a dismissal without jurisdiction. When time is given, as it was in this case, for the performance of any act till a certain date, the time given includes that date also. See Perumal Nadan v. Sivanamji Nadachi I.L.R. (1915) Mad. 583 and Chinniah Chettiar v. Kumaraswamiah (1933) M.W.N. 88. Here in effect the Court disposed of the matter as though time had been granted till the 2nd December, 1943. In that event a calling of the case on the 3rd December for the purpose of filing the required additional affidavit would have been in order; but as time fixed was ' till 3rd December, 1943,' I do not consider that any order of dismissal for default, when as is clear here the purpose of the hearing was for the filing of the additional affidavit, can be regarded as a proper exercise of the jurisdiction of the Court. On this ground alone I would be prepared to allow the application for revision.
5. It is necessary however to consider the further point. It is contended that the application under Order 21, Rule 90, Civil Procedure Code, filed on behalf of the minors is a nullity inasmuch as it is filed by a person other than the guardian ad litem appointed to act on their behalf in the suit. I am not prepared to agree. Order 32, Rule 2 provides:
Where a suit is instituted by or on behalf of a minor without a next friend, the defendant may apply to have the plaint taken off the file, with costs to be paid by the pleader or other person by whom it was presented.
It was held in Rarichan v. Manakkal Raman Somayajipad (1922) 44 M.L.J. 515:
If on an issue raised and tried in the case, the Court finds that the plaintiff is a minor it should not dismiss the suit at once but should allow a reasonable time for a next friend to come on record and go on with the suit and it is only if no one comes forward that it should reject the plaint.
This view was expressed at page 518 of the judgment in that case. The principle applicable seems to me to be the same whether the case is one of filing a proceeding without a guardian ad litem or filing it with the wrong next friend. It has been brought to my notice that the Allahabad High Court held in Hemraj v. Khem Chand I.L.R. (1938) All. 829 that a petition of objections filed on behalf of the minor in execution proceedings by some person other than the person appointed in the suit as his guardian ad litem, is not maintainable. If this decision amounts to a decision that a petition filed on behalf of the minor by some person other than the person appointed as guardian ad litem must necessarily be a nullity, I must respectfully decline to follow it. It seems to me that whether or not in such circumstances time should be allowed for the correct guardian ad litem to be brought on to the record if he so desires is a matter which can be decided only on the facts of the particular case. In the present case, as pointed out earlier, the respondents had no notice of this petition until the matter was on appeal against the order of dismissal. I propose to set aside the order of the District Munsiff and the upholding of it on appeal by the District Judge and return the application to the District Munsiff for consideration. He will take up the matter in the position that it stood in on the 3rd December, 1943, and will hear and dispose of any objection which may be raised against the maintainability of the application on the ground that the person purporting to act as guardian ad litem is not entitled to file the application. There will be no order as to costs of this petition.