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Batchu Perraju Vs. Batchu Venkataratnam and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1928Mad1
AppellantBatchu Perraju
RespondentBatchu Venkataratnam and ors.
Excerpt:
- - the question is whether the order for attachment was good in the absence of a proper guardian to represent the minors in the suit? the court should see before making the conditional order absolute that a guardian is appointed to properly represent the minors, as the guardian might represent to the court that the plaintiff has not made out a good case for attachment before judgment or that he is willing to give security for any decree that may be passed in the suit, and, therefore, the attachment before judgment is not necessary......that on the date on which the order for attachment was made the minors were not represented by a proper guardian. the question is whether the order for attachment was good in the absence of a proper guardian to represent the minors in the suit? the subordinate judge has held that there was a proper attachment and the plaintiff having purchased the property subject to the attachment he is not entitled to treat the property as if it was not subject to the attachment. the contention of mr. somasundaram is that there was no proper guardian for the minors at that time; therefore the minors could not ,be properly represented and an order against them could not be valid. no doubt an order made against minors who are not represented by a proper guardian would be infructuous, but in this case.....
Judgment:

1. The question in this second appeal is whether the property of defendants 3 to 5 purchased by the plaintiff was subject to the attachment before judgment ordered in O.S. 128 of 1919. That was a suit brought by defendant 1 herein against defendants 3 to 5, and their maternal uncle for a sum of money said to be due to defendant 1. The plaint was presented to the Court' on the 19th June 1918. An application was made for attachment before judgment on the 17th July 1918. The District Munsif ordered conditional attachment on 17th July 1918; and the conditional order of attachment was made absolute on 13th August 1918. Defendants 3 to 5 were minors at that time and defendant 1, their maternal uncle, was proposed as their guardian. He seems to have informed the Court before 14th August 1918 that he was unwilling to act, whereupon defendant 1 (plaintiff in that suit) proposed their mother, Ramalakshmi, as guardian of the minor defendants. That application was supported by an affidavit of the same date. In the affidavit it is stated:

defendant 1 has refused to act as guardian.

2. It is quite clear, therefore, that on the date on which the order for attachment was made the minors were not represented by a proper guardian. The question is whether the order for attachment was good in the absence of a proper guardian to represent the minors in the suit? The Subordinate Judge has held that there was a proper attachment and the plaintiff having purchased the property subject to the attachment he is not entitled to treat the property as if it was not subject to the attachment. The contention of Mr. Somasundaram is that there was no proper guardian for the minors at that time; therefore the minors could not ,be properly represented and an order against them could not be valid. No doubt an order made against minors who are not represented by a proper guardian would be infructuous, but in this case there is the fact, the order for conditional attachment was made on 17th July 1918 and at that time the uncle was proposed to be the guardian. Subsequently he came and expressed his unwillingness to act as guardian and the question is whether the conditional attachment is a good attachment or a bad attachment. It is usual for a plaintiff to file an application along with the plaint for the attachment of the property of the defendants, and if there are minors in the suit to propose some person as their guardian. If afterwards the guardian is found unwilling to act the Court appoints a proper guardian. But the Conditional attachment made in the hope that the proposed guardian would act cannot be said to be invalid by reason of the proposed guardian being unwilling to act. The Court should see before making the conditional order absolute that a guardian is appointed to properly represent the minors, as the guardian might represent to the Court that the plaintiff has not made out a good case for attachment before judgment or that he is willing to give security for any decree that may be passed in the suit, and, therefore, the attachment before judgment is not necessary. Therefore, an order absolute for attachment before judgment could not be made in the absence of a proper guardian. But a conditional order that simply prevents the property from alienation by the defendants pending the disposal of the application cannot be said to be invalid merely because the guardian proposed comes and says he is unwilling to act.

3. In the view we take the conditional order for attachment still subsists. The fact that the petition has been disposed of would not in any way affect the question of the propriety and the validity of the conditional attachment, but as there is no order absolute as regards the attachment against the minor defendants the proper course would be for the District Munsif's Court to treat the application as if on file and proceed with it according to law. If the Munsif finds that the plaintiff is able to make out a case in the circumstances of the ease existing in July 1918 then he should make the conditional order absolute; but if he finds that the circumstances existing in July 1918 would not justify an order for attachment before judgment, he should dismiss the petition. If he makes the order absolute, then the property would be subject to the attachment order so made. The appellant herein will be entitled to intervene in the proceedings to show that the conditional order for attachment should not be made absolute. The appellant is entitled to the costs of this second appeal.


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