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Brojendra Kishore Roy Choudhury Vs. Sk. Shamserali and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1937Cal259
AppellantBrojendra Kishore Roy Choudhury
RespondentSk. Shamserali and anr.
Cases ReferredFani Bhusan Bhuian v. Surendra Nath Das
Excerpt:
- .....appointment of a fresh guardian was necessary.6. our conclusion therefore is that a guardian of a minor appointed in the suit continues to be the guardian of the minor in the execution proceeding until he dies or is removed. the decree-holder is therefore not bound to have a fresh guardian of the minor judgment-debtor appointed in the present execution proceeding. the result therefore is that this appeal is allowed, the orders of the courts below are set aside and the case is sent back to the trial court. the learned munsif is directed to proceed with the execution according to law. in view of our decision in the appeal no order is necessary in the application for revision under section 115, civil p.c. parties will bear their own costs in the courts below. the deputy registrar's costs.....
Judgment:

1. The appellant obtained a decree for rent against the respondents on 1st July 1934. One of the respondents is a minor. His father was appointed his guardian for the suit in which the said rent decree was passed. The appellant put this rent decree into execution in the Court of the Munsif at Iswarganj on 21st August 1934. The office of the learned munsif reported to him that the decree-holder had not filed any application or affidavit for the appointment of a fresh guardian of the minor judgment-debtor as required under the standing order of the District Judge. The learned Munsif ordered the appellant to file the petition and affidavit. The appellant however did not comply with this order with the result that his application for execution was dismissed by the learned Munsif on 5th September 1934. An appeal was thereupon taken by the decree-holder to the lower appellate Court. The learned District Judge remanded the matter for rehearing to the Munsif on the ground that whether a fresh guardian ad litem should be appointed in the execution proceeding or not was a matter entirely in the judicial discretion of the Court and could not be decided by the standing order of the District Judge. The matter then went back to the Munsif again and the learned Munsif after hearing the case recorded the following order:

Heard pleader. In my opinion a fresh guardian ad litem should be appointed in this execution proceeding. The decree holder must file a petition and affidavit within eight days.

2. On 14th March 1935, the execution petition was dismissed by the Munsif for failure of the decree-holder to comply with this order. The decree-holder again appealed to the lower appellate Court and the learned District Judge has dismissed the appeal on the ground that it was not competent. Hence this second appeal by the decree-holder. The decree-holder has also filed an application for revision under Section 115, Civil P.C., in the alternative. A preliminary objection has been taken by the learned advocate for the respondent that the order of the learned Munsif rejecting the decree-holder's application for execution is not one under Section 47, Civil P.C., as the application was rejected for default of the decree-holder to comply with the Court's order. We are unable to accept this contention. The effect of the order of the Court below is that the present execution case is not maintainable until and unless the decree-holder gets a fresh guardian appointed by the Court. The point for determination in this appeal is whether the decree-holder is bound to have a fresh guardian appointed to represent the minor respondent in the present execution proceeding. Order 32 of the Code provides for the appointment of the guardian of minor defendants in the suit. There is no express provision for the appointment of the guardian of a minor judgment-debtor in execution proceeding. By Section 141, Civil P.C., the procedure provided in the Code in regard to suits is to be followed as far as it can be made applicable in all proceedings in any Court of civil jurisdiction. This section has replaced Section 647 of the Code of 1882. Before 1892 there was a difference of opinion between the different High Courts on the question whether Section 647 of the Code of 1882 applied to execution proceedings. In order to explain the meaning of this section the following explanation was added to this section by Amending Act of 1892:

This section does not apply to applications for the execution of the decrees which are proceedings in suits.

3. In Thakur Pershad v. Sheik Fakirh Ullah (1895) 17 All 106 their Lordships of the Judicial Committee, while considering this explanation made the following observations:

Their Lordships' attention has been called to the recent Act 6 of 1892 which would appear to have been passed in order to avoid the disturbance of practice caused by the Allahabad rulings...But having regard to the controversies which have arisen and the difference of opinion between the various High Courts their Lordships have thought it right to state their opinion that the Act of 1892 does nothing more than express the true meaning of the Civil Procedure Code.

4. The effect of these observations of the Judicial Committee is that the procedure relating to suits laid down in the Code would apply to applications for execution which are proceedings in suits. An examination of the provisions of the Code indicate that wherever the Legislature thought that certain provisions of the Code relating to suits should not apply to execution proceedings it said so expressly: see Order 22, Rule 12 and Order 23, Rule 4. The object of mentioning these exceptions is to indicate that other provisions would apply to execution proceedings as they are proceedings in suits. If this is not the true meaning of the Code, there is no provision in the Code under which a guardian of a minor judgment-debtor can be appointed in an execution proceeding. The above view finds support also from the observation of the Judicial Committee in Tekait Krishna Prasad Singh v. Moti Chand (1913) 40 Cal 635. In that case a decree was obtained against the minor appellant, his father and certain other persons in the Court of the Subordinate Judge at Benares. The Nazir of the Benares Court was appointed guardian of the minor appellant for the suit. After decree the suit was remitted to the Court of the Deputy Commissioner of Hazaribag for the purpose of execution and the properties of the judgment-debtors were attached. Thereafter the father of the minor appellant died. No fresh guardian of the minor appellant was appointed after the death of his father. On these facts their Lordships of the Judicial Committee observed as follows:

It is true that in the original proceedings in the local Court of Benares, in the lifetime of his father he and three other minors were added as defendants, and the Nazir of that Court was appointed pro forma guardian to them for the purposes of the suit. When however the proceedings were transferred to the Court of the Deputy Commissioner of Hazaribag, it was obviously impossible for him to act in this capacity and he refused so to do. From and after the death of the judgment-debtor and down to the time of the actual sale there was therefore no effective representative of the infant heir.

5. The obvious implication of these observations is that up to the death of the father of the minor appellant, the minor was properly represented in the execution proceedings, as the Nazir of the Court was appointed his guardian ad litem in the original suit. Much reliance was placed by the learned advocate for the respondent upon a decision of this Court in Khajeh Salaluddin v. Afzal Begum : AIR1925Cal23 . In that case the learned Judges relying on certain observations of Lord Lyndhurst in Kinsman v. Kinsman (1831) 1 Russ & M 617 at p. 622 observed that the guardianship of the guardian ad litem appointed during the suit, terminated after the final decree made in the suit. The attention of the learned Judges however was not drawn to the decisions of the Judicial Committee to which we have already referred. Further the observations of Lord Lyndhurst were made in connexion with the question of Lis pendens. It may be mentioned here that by the amending Act of 1929 an Explanation has been added to Section 52, T.P. Act, whereby the pendency of a suit or proceeding is to be deemed to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained. In the case before us we are concerned with the interpretation of the word 'suit' in the Code. If applications for execution of decrees are proceedings in suits, a guardian appointed in the suit continues to be a guardian in execution proceedings as well. Our attention was also drawn to another decision of this Court in Fani Bhusan Bhuian v. Surendra Nath Das AIR 1921 Cal 476. In that case however the guardian of the infant died in the course of the execution proceedings and consequently the appointment of a fresh guardian was necessary.

6. Our conclusion therefore is that a guardian of a minor appointed in the suit continues to be the guardian of the minor in the execution proceeding until he dies or is removed. The decree-holder is therefore not bound to have a fresh guardian of the minor judgment-debtor appointed in the present execution proceeding. The result therefore is that this appeal is allowed, the orders of the Courts below are set aside and the case is sent back to the trial Court. The learned Munsif is directed to proceed with the execution according to law. In view of our decision in the appeal no order is necessary in the application for revision under Section 115, Civil P.C. Parties will bear their own costs in the Courts below. The Deputy Registrar's costs having been deposited in this Court, there will be no order for costs in this appeal.


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