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Balasubramanian (Minor) by His Maternal Uncle and Proposed Guardian, Arumugham Vs. Tinnevally District Permanent Fund Ltd. TuticorIn by Its Secretary, P.V. Srinivasa Iyengar and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberA.A.O. No. 250 of 1958
Judge
Reported inAIR1959Mad429
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rule 90 - Order 32
AppellantBalasubramanian (Minor) by His Maternal Uncle and Proposed Guardian, Arumugham
RespondentTinnevally District Permanent Fund Ltd. TuticorIn by Its Secretary, P.V. Srinivasa Iyengar and anr.
Advocates:S.V. Rama Iyengar, Adv.
DispositionAppeal dismissed
Cases ReferredKrishna Pershad Singh v. Moti Chand
Excerpt:
- - the person who made the present application once before tried to remove the maternal grandfather and get himself appointed as guardian instead, but his attempt failed and the court refused to bring him on record as the guardian of the minor......learned counsel for the appellant contended that in the interests of the minor any person could file an application under order 21, rule 90, of the code, to set aside the sale of the minor's property. in support of this contention the learned counsel relied upon the judgment of clark j. in venkatarao v. rattamma, : (1946)2mlj473 , and that of the judicial commissioner of the nagpur chief court in shantabai v. laxmichand, . the judgment of clark j. unfortunately is not of much assistance. there are observations in the course of his judgment which do help the appellant and they are these :'it has been brought to my notice that the allahabad high court held in hemraj v. khemchand : air1938all601 , that a petition of objections filed on behalf of the minor in execution proceedings by some.....
Judgment:

P. V. Rajamannar, C.J.

1. There is no substance in this appeal. The appeal is against an order passed by the learned Subordinate Judge of Tuticorin, dismissing an application made by the appellant before us. In execution of the decree in O. S. No. 49 of 1955 on the file of that Court, property belonging to the minor judgment-debtor had been sold and the application out of which this appeal arises was filed by the minor through his maternal uncle Arumugham, to set aside the sale under Order 21. Rule 90, C. P. C. There was also a prayer to dispense with the security. Actually, Arumugham the person who purported to file the application on behalf of the minor was not the guardian ad litem in the suit nor was he the guardian acting for the minor in the execution proceedings.

The mother was the original guardian of the minor but she was removed on an application made by the maternal grandfather. The person who made the present application once before tried to remove the maternal grandfather and get himself appointed as guardian instead, but his attempt failed and the Court refused to bring him on record as the guardian of the minor. The learned Judge has held that the application was not maintainable because the maternal grandfather could not file the application on behalf of the minor because he was not the guardian ad litem.

2. Before us the learned counsel for the appellant contended that in the interests of the minor any person could file an application under Order 21, Rule 90, of the Code, to set aside the sale of the minor's property. In support of this contention the learned counsel relied upon the judgment of Clark J. in Venkatarao v. Rattamma, : (1946)2MLJ473 , and that of the Judicial Commissioner of the Nagpur Chief Court in Shantabai v. Laxmichand, . The judgment of Clark J. unfortunately is not of much assistance. There are observations in the course of his judgment which do help the appellant and they are these :

'It has been brought to my notice that the Allahabad High Court held in Hemraj v. Khemchand : AIR1938All601 , 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.'

With great respect to the learned Judge we are unable to agree with the broad proposition of law, that any person other than the person appointed in the suit as guardian ad litem can file an application, on behalf of the minor in execution proceedings. The concluding portion of the learned Judge's judgment shows that the learned Judge was not laying down a rule of general application for, he remanded the matter for hearing and disposal of the 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. It may be pointed out, however, that in the case before Clark J., the person who made the application was the mother who was the natural guardian of the minor.

In the Nagpur case, , application was made by the lawful guardian becausethe guardian ad litem had not taken steps in the interests of the minor. The decision cannot apply to the present case where Arumugham, the maternal uncle, was not the lawful guardian. It was open to the person interested in the minor to apply to the Court for appointment as guardian ad litem alleging that the guardian ad litem on record had been neglecting the interests of the minor. Until this is done, a person merely alleging that he has interest in the minor cannot be allowed to file any application on behalf of the minor. The only possible exception that can be recognised, having regard to the principles enunciated by their Lordships of the Privy Council in Krishna Pershad Singh v. Moti Chand, ILR 40 Cal 635 is the natural or the statutory guardian of the minor. The learned Subordinate Judge was, therefore, right in dismissing the application as not sustainable.

3. The appeal is dismissed.


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