1. Second Appeal from the order of the Subordinate Judge, of Dindigul in A.S. No. 56 of , 1924, in E.A. No. 104 of 1924. In the Court of the District Munsif of Palni a minor Ponnuswami Goundan applied by his guardian Devakkal for a declaration that certain property was not assets of his grandfather and was not liable to attachment.
2. The District Munsif ordered notice to the attaching decree-holder on 8-3-1924. On 15-3-1924 the petitioner's vakil took a further adjournment to 1-4-1924 paying for the costs of that hearing. On 1-4-1924, the vakil failed to appear and the case adjourned to 8-4-1924 and again to 9-4-1924, when arguments were heard. On 11-4-1924 the case was posted for evidence on 26-4-1924. On that day the petitioner's Dindigul vakil wrote that he was not ready with documents and another vakil moved for adjournment. The Munsif dismissed the petition for non-prosecution. The petitioner appealed and the Subordinate Judge had dismissed the appeal holding that she should have appeared and presented her case through a local vakil if the vakil from Dindigul would not appear. Considering that she raised this question in March, the petitioner ought with due diligence to have had her documents by the end of April, and as she was employing a local vakil to apply for adjournment she might have given him the documents.
3. On the merits there is no ground for interference nor indeed is such ground taken in this second appeal. On the contrary the appellant, the same guardian, now urges that the worse her behaviour is found to have been in the Munsif's Court, the better will be her case on appeal. The minor whom she represents cannot be made to suffer by the negligence of his guardian and such negligence cannot afford 'ground for ex-parte proceedings analogous to those under Order 9. The Court must grant adjournments until the minor's suit may be said to be properly conducted. Obviously if such a plea were valid a minor suing through a guardian would be master of the proceedings. He could delay the trial by laches of every description, and when at last the patience of the Court was exhausted and an adverse order was passed against him, he could have that order set aside on account of the same laches.
4. Mr. W.S. Subramania Iyer relies upon the ruling reported in Dada Saheb v. Gayaraja Singh A.I.R. 1925 Mad. 204,for this extraordinary proposition but it does not help him. There one Kollapuram Gajaraj1 Singh had sued, a minor Dada Saheb for possession of a shop, The suit was decreed ex-parte. The minor then brought a fresh suit for recovery of the property on the plea that the previous suit was not binding upon him owing to the negligence of his guardian. The Munsif held that the guardian had, the Subordinate Judge on appeal that he had not, been guilty of negligence and this Court on second appeal restored the Munsif's finding. It is always open to a minor to bring a suit of this character, but it is not open to a guardian ad litem to plead his own default in the same suit as that in which he appears. I may add that there is nothing in the face of this record to warrant a conclusive presumption that the guardian has been guilty of such negligence as would justify the minor in repudiating the decree. Suppose for instance that as a matter of fact there are no relevant documents and the guardian in applying for an adjournment was merely clutching at a last resource and playing for time. Such questions of fact must be decided in the appropriate proceeding.
5. The appeal is dismissed with costs two sets.