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Arumuga Goundan and ors. Vs. Periavanjiappa Goundan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in78Ind.Cas.76; (1924)46MLJ348
AppellantArumuga Goundan and ors.
RespondentPeriavanjiappa Goundan and ors.
Cases ReferredVenkata Bow v. Tuljaram Bow
Excerpt:
civil procedure code (act v of 1908) section 151 - minor not properly represented--decree against minor nullity--decree declared not binding--power of court to revive original suit against minor--inherent powers of court. - .....power to restore a suit once disposed of and to add parties to it who were not represented at the original trial. bhagwan dayal v. param sukh das 86 ind. cas. 866 : 89 a. 8 : 14 a.l.j. 818. 68 ind. cas. 184; (1920) m.w.n. 1 : 87 m.l., is quoted as an authority for so doing, but that case has been dissented from by a bench of this court in eda punnayya v. jangalu kamahottayya 8 s 9 : 26 m.l.t. 327 : 10 l.w. 471. as pointed out by oldfied and seshagiri aiyar, jj., if a minor is not properly represented before the court, a decree passed against him is in effect a nullity and the court cannot set aside the ex parte order and reopen the suit under order ix, rule 13.4. if the minors were not legally made parties to the suit, the action of the court in making them parties now is tantamount to.....
Judgment:

Spencer, J.

1. In O.S. 476 of 1921 it was decided that the decree in O.S. 559 of 1919 was not binding on the minors because they were not validly represented in the earlier suit, the guardian appointed by the Court not having consented to act as guardian and not having appeared for them at the trial.

2. The decree in O.S. 479 simply declared that the decree in O.S. 559 was not binding on the minors, and in this respect it was in accordance with what, in the view of the Privy Council in Monohar Lal v. Jadunath Singh 28 A.586 9 : 4 C.L.J. 8 : 8 Bom. L.R. 489 : 10 C.W.N. 898 : 9 O.C. 219 : 1 M.L.T. 210 : 16 M.L. 3. 291 : 3 A.L.J. 710 : 33 I.A. 128 , was a proper decree, viz., that it would be sufficeint in such a case to remit the parties to their original rights without declaring that the earlier suit would have to be tried afresh.

3. In the judgment in O.S. 479 there is an observation that O.S. 559 will have to be revived as against these minor plaintiffs, and the District Munsif has now, in the exercise of his supposed powers under Section 151 Civil Procedure Code, taken the case back on his file and proceeded to try it, I do not think that the Court possessed inherent power to restore a suit once disposed of and to add parties to it who were not represented at the original trial. Bhagwan Dayal v. Param Sukh Das 86 Ind. Cas. 866 : 89 A. 8 : 14 A.L.J. 818. 68 Ind. Cas. 184; (1920) M.W.N. 1 : 87 M.L., is quoted as an authority for so doing, but that case has been dissented from by a Bench of this Court in Eda Punnayya v. Jangalu Kamahottayya 8 S 9 : 26 M.L.T. 327 : 10 L.W. 471. As pointed out by Oldfied and Seshagiri Aiyar, JJ., if a minor is not properly represented before the Court, a decree passed against him is in effect a nullity and the Court cannot set aside the ex parte order and reopen the suit under Order IX, Rule 13.

4. If the minors were not legally made parties to the suit, the action of the Court in making them parties now is tantamount to restoring to file a suit already disposed of and adding parties who were not represented at the original trial. The case in Venkata Bow v. Tuljaram Bow 38 Ind. Cas. 270; (1917) M.W.N. 30 : 5 L.W. 482 is not an authority for such a proceeding.

5. I set aside the order of the District Munsif with costs in this Court and remit the parties to their rights as they stood at the disposal of O.S. 479 of 1921.


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