1. This is a suit by the first plaintiff to set aside a decree in a prior suit brought by his guardian during his minority and for recovery of the suit property. The Lower Appellate Court has found that the earlier decree was obtained owing to the gross negligence of the 1st plaintiff's guardian and has consequently held that it is not binding on the 1st plaintiff nor upon his legal representative, the 2nd plaintiff.
2. Objection is taken both to the finding of fact that there was gross negligence and also to the procedure adopted by the plaintiffs. In coming to the finding that there was gross negligence, the Lower Appellate Court has found that the 1st plaintiff's guardian put forward a false recital in the plaint, made a false admission in the Appellate Court and omitted to adduce most important evidence which was within her power. On these facts I must accept the finding that there was gross negligence.
3. As regards the second point, it is contended on the authority of Raghubar Dyal Sahu v. Bhikya Lal Misser I.L.R. (1885) C. 69 that the proper procedure was for the plaintiffs to apply for review of the decree in the first suit and not by way of a separate suit. The judgment of Field, J., in Raghubar Dyal Sahu v. Bhikya Lal Misser I.L.R. (1885) C. 69 does certainly seem to take this view, but his observation is purely obiter and is not supported by any very cogent arguments. He merely states that the provisions of the Code of Civil Procedure relating to review are sufficiently wide to include such a case. He does not state to which particular provision he refers, although the section relating to review contains various grounds on which review may be granted. He also appears to draw a distinction between a minor's remedy for setting aside a decree obtained by fraud or collusion and his remedy against a decree obtained by gross negligence. He does not give any authority for this distinction. This dictum was approved in Bent Prasad v. Lajja Ram I.L.R. (1916) A. 452 but in that case also it was unnecessary for the decision of the suit. In a recent case in this Court, Punnayya v. Viranna (1921) 43 M.L.J. 429 the view of the Calcutta Court was dissented from and it was held that the plaintiff could maintain a suit if the guardian ad litem had seriously neglected his interests. With all respect, I agree with the view taken in that case and accordingly dismiss the appeal with costs
4. I agree. I do not think that any good ground has been shown for distinguishing a case of gross negligence on the part of the guardian of the minor from that of fraud and collusion. The case cited in support of the distinction is Raghubar Dyal Sahu v. Bhikya Lal Misser I.L.R. (1885) C. 69 where Field, J., observes that 'if an infant desires to have a decree set aside on the ground that his next friend had neglected his interests and had not put forward on his behalf good grounds of defence which were available, the proper procedure would be to apply for review ' and in the opinion of the learned Judge the provisions of the Civil Procedure Code were sufficiently wide to include such a case. He does not, however, explain within what particular clause of what is now Order 47, Rule 1 the matter would fall and it is to be noted that this is an opinion expressed obiter in the course of his judgment which does not seem to have been concurred in by the other Judge. The suit was dismissed on the ground that the plaintiff failed to establish any case of fraud and no decision has been cited to us where a suit has been dismissed on the ground that the proper remedy in such a case was to come by way of review and not by suit. The judgment in Beni Pra-sad v. Lajja Ram I.L.R. (1916) A. 452 adopts the Calcutta decision but it is also noteworthy that there the learned Judges held that even if they were to hold that a minor could avoid a decree solely on the ground of gross negligence, they did not think that in the case before them, gross negligence had been established. Reference was also made to Gregory v. Molesworth (1748) 3 Atk 626, in which it was held that a minor could come by what was then called a bill or review. This seems to have given some ground to the appellant in this case for supposing that the word 'review' is the same in the old equity practice as it is in the Code of Civil Procedure. This, I think, would be an exceedingly dangerous analogy to proceed upon. We know that in the Chancery proceedings were commenced by a bill, whereas on common-law side, they were commenced by a writ. I therefore agree with the decision of Spencer and Ramesam, JJ., in Punnayya v. Viranna I.L.R. (1921) M. 425 where they dissent from the opinion expressed by Field, J., in Raghubar Dyal Sahu v. Bhikya Lal Misser I.L.R. (1885) C. 69 and hold that the plaintiff was entitled to maintain a suit, if the Court was satisfied that his guardian ad litem had seriously neglected his interests.
5. On the question of fact I have nothing to add and I agree with Phillips, J., that the appeal must be dismissed with costs.