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Jambu Ammal Vs. Nataranjam Pillai Minor by Guardian Ramasami Pillai - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported inAIR1922Mad485; 70Ind.Cas.867
AppellantJambu Ammal
RespondentNataranjam Pillai Minor by Guardian Ramasami Pillai
Cases ReferredBut Debt Bakhsh Singh v. Habib Shah
Excerpt:
civil procedure code, (act v of 1908), section 151, order xxxii, rule 3 - court guardian, appointment of, without serving notice on natural guardian--illegality--inherent bower to rectify mistake. - - and his procedure in overlooking order xxxii, rule 3 and appointing his own head clerk who could have had no knowledge of any defence to suit as guardian ad litem is clearly illegal......o.c. 194 :(1913) 40 i.a. 151 (p.c.) is a clear authority for the position that the court has got inherent power to correct the errors or mistakes committed by itself. in this case the district munsif who tried small civil suit no. 835 ought to have issued notice to the guardian of the minor defendants after being formed by the process-server of her address: and his procedure in overlooking order xxxii, rule 3 and appointing his own head clerk who could have had no knowledge of any defence to suit as guardian ad litem is clearly illegal. in these circumstances, the district munsif was justified in passing an order he did, and i do not think that i should interfere with his order which i consider to be eminently just. the petitioner could now ask the court to proceed with the case, small.....
Judgment:

Devadoss, J.

1. This is an application under Section 115, Civil Procedure Code, to revise the order of the District Judge of Coimbatore, dismissing an appeal against the order of the District Munsif of Coimbatore in Execution Appeal No. 326 of 1920 in Small Cause Suit No. 835 of 1916. The Principal District Munsif of Coimbatore on an application of the two minors, by their next friend and maternal grandfather set aside the decree and execution proceeding to in Small Cause Suit No. 835 of 1916 on the ground that the Court which decided the Small Cause Suit No. 835 of 1916 did not follow the procedure laid down in Order XXXII, Rule 3; that after knowing the address of the guardian of the minor defendants it did not order fresh notice to the guardian, but made the Head Clerk of the Court guardian of the minors and proceeded with the suit, in consequence of which there was no proper defence to the plaintiffs' suit, and the execution proceedings could not have he come known to the maternal grandfather with whom the, minors were residing.

2. The facts of the case are these: Small Cause Suit No. 835 of 1916 was brought by the plaintiff as transferee of a promissory-note said to have been executed by the paternal grandfather of the defendants to one Krishna Iyengar. After he obtained a decree he transferred it to the present petitioner, who is the wife of one Subramania Iyer, a hotel keeper, who holds a usufructuary mortgage on the property which is a house belonging to the minor defendants. She brought the property to sale and it was purchased by one Chidambara Iyer who transferred it to the petitioner: It is argued for the petitioner that the suit was filed so far back as 9th May, 1916, the decree was obtained on 14th December, 1916, the sale in execution of the decree was on 15th October 1917, and the satisfaction of the decree was entered on 16th November 1917, and that the District Munsif s Court had no jurisdiction after this lapse of time to entertain an application of this kind to rectify an error or an alleged error supposed to have been committed by the Court in the disposal of the suit. The District Munsif has relied upon Deli Bakhsh Singh v. Habib Shah 19 Ind. Cas. 526 : 35 A. 331 : 17 C.W.N. 829 : 11 A.L.J. 625 : 18 C.L.J. 9 : 15 Bom. L.R. 640 : 14 M.L.T. 33 : (1913) M.W.N. 566 : 25 M.L.J. 148 : 16 O.C. 194 : 40 I.A. 151 (P.C.) which is a distinct authority for the position that the Court has got inherent power to correct any mistake it has made. The Privy Council observed at page 337 Page of 35A.--[Ed.]. 'quite apart from Section 151, any Court might lightly have considered itself to possess ,an inherent power to rectify the mistake which had been inadvertently made.' Relying upon this decision, the District Munsif has upset he decree against the minors and the subsequent execution proceedings including he sale.

3. Mr. Ranganadha Iyer on behalf of the petitioner argues that a third party, namely, auction-purchaser, has acquired rights over he property and such rights should not be interfered with on the ground that some mistake was committed by the Court in the course of the small cause suit, it must be remembered in this connection that the petitioner is no other than the wife of the mortgagee and she is the transferee decree-holder and subsequent to the auction-sale has become the owner of the property. Reading between the lines, it is quite clear that, the hotel-keeper, Subramania Iyer, who had a mortgage on the minors property wanted to get hold of the property by some means or other and that is the reason why he got a transfer of the decree in his wile s name and brought the property to sale without the knowledge pi the guardian of the minor defendants. Gadi Neelaveni v. Marappareddi Gari Narayana Reddi 53 Ind. Cas. 847 : 37 M.L.J. 599 : 26 M.L.T. 377 : 10 L.W. 606 : (1920) M.W.N. 19 : 43 M. 94 (F.B.) is quoted to show in what cases inherent power of the Court could be invoked. Kanai Lall Ghose v. Jatindra Nath Chandra 42 Ind. Cas. 711 : 26 C.L.J. 325 : 22 C.W.N. 446 : 45 C. 519 also is relied upon for the purpose that the order of the lower Court is wrong.. But Debt Bakhsh Singh v. Habib Shah 19 Ind. Cas. 526 : 35 A. 331 : 17 C.W.N. 829 : 11 A.L.J. 625 : 18 C.L.J. 9 : 15 Bom. L.R. 640 : 14 M.L.T. 33 : (1913) M.W.N. 566 : 25 M.L.J. 148 : (1913)16 O.C. 194 :(1913) 40 I.A. 151 (P.C.) is a clear authority for the position that the Court has got inherent power to correct the errors or mistakes committed by itself. In this case the District Munsif who tried Small Civil Suit No. 835 ought to have issued notice to the guardian of the minor defendants after being formed by the process-server of her address: and his procedure in overlooking Order XXXII, Rule 3 and appointing his own Head Clerk who could have had no knowledge of any defence to suit as guardian ad litem is clearly illegal. In these circumstances, the District Munsif was justified in passing an order he did, and I do not think that I should interfere with his order which I consider to be eminently just. The petitioner could now ask the Court to proceed with the case, Small Cause Suit No. 835, from the stage in which it was at the time when notice was returned unserved upon the guardian of the minor defendants and it would be right and proper for the District Munsif to have the petitioner on record as supplemental plaintiff and proceed with the suit if the petitioner is so minded. I hold that the lower Court's order is right and I dismiss the petition with costs.


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