Skip to content


Paritosh Kumar Ganguly Vs. Smt. Sitala Bala Ghosh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberC.O. No. 3170 of 1984
Judge
Reported inAIR1985Cal164,89CWN441
ActsCode of Civil Procedure (CPC) , 1908 - Order 32, Rule 3(5)
AppellantParitosh Kumar Ganguly
RespondentSmt. Sitala Bala Ghosh and ors.
Appellant AdvocatePratap Roy, Adv.
Respondent AdvocateTapan Kumar De, Adv.
DispositionApplication dismissed
Cases ReferredSherija Bi v. V. Pillai
Excerpt:
- .....could not be properly represented by his guardian mother in the proceedings of the suit, the decree passed against him by the trial court on 31-8-1979 which was affirmed in appeal, is a nullity and not binding on him. it wascontended that after attainment of majority by him in 1975 no summons or notice of the suit was served on him and he was unaware of the proceedings of the suit and, therefore, the decree passed therein in so far as he is concerned is a nullity and not binding and cannot be executed against him. the learned munsif has dismissed the application under section 47 of the code giving rise to misc. case no. 14 of 1982 holding that the petitioner was properly represented in the suit as he was represented by the guardian appointed by the court who represented his.....
Judgment:
ORDER

Amitabha Dutta, J.

1. This decision relates to an application filed by the decree holder opposite parties for variation and/or vacating the interim order dated 3rd December, 1984 passed by this Court in this Civil Order staying all further proceedings of the Misc. Case No. 25 of 1981 pending before the learned Munsif 1st Additional Court, Alipore arising out of an application of the petitioner under Section 47 of the Civil P.C. raising objection to the execution of the decree for ejectment passed in Title Suit No. 219 of 1966.

2. It appears that the decree holder opposite parties filed Title Suit No. 219 of 1966 for ejectment and damages against the original tenant defendant Sushil Chandra Ganguly who died during the pendency of' the suit and thereafter the heirs and legal representative of the deceased tenant defendant were brought on record including the two minors Paritosh Ganguly and Km. Sandhya Ganguly. The learned Munsif appointed an Advocate as guardian of the said minors. The Advocate guardian after issuing registered notice to the natural guardian mother of the minors did not receive any instruction to contest the suit filed, whereupon the learned Munsif appointed Smt. Laxmi Devi Ganguly, mother of the minors as their guardian in the proceedings of the suit. The mother guardian of the said minors contested the suit by filing written statement.

The suit was ultimately decreed by the learned Munsif on 31-8- 1979. Thereafter the defendants including the minors represented by their mother guardian filed Title Appeal No. 1187 of 1979 which was dismissed on contest. Subsequently, the tenant defendant filed Second Appeal from the decree of the first appellate Court in this Court and at the hearing under Order 41 Rule 11 of the Code on 8-4-1982 the learned Judges of the Division Bench summarily dismissed the appeal and directed that the application for stay and affidavit for attainment of majority be kept with the record. The defendants/appellants were granted two months' time to vacate the suit premises.

3. After the aforesaid order of the Division Bench, as the defendant Paritosh Ganguly, the petitioner in the present Civil Order did not vacate the suit premises, the decree holders filed Title Execution Case No. 2 of 1981 for executing the decree and in the said execution case the defendant Paritosh Ganguly filed objection under Section 47 of the Civil P.C. contending that as he attained majority in 1975 and thereafter could not be properly represented by his guardian mother in the proceedings of the suit, the decree passed against him by the trial Court on 31-8-1979 which was affirmed in appeal, is a nullity and not binding on him. It wascontended that after attainment of majority by him in 1975 no summons or notice of the suit was served on him and he was unaware of the proceedings of the suit and, therefore, the decree passed therein in so far as he is concerned is a nullity and not binding and cannot be executed against him. The learned Munsif has dismissed the application under Section 47 of the Code giving rise to Misc. Case No. 14 of 1982 holding that the petitioner was properly represented in the suit as he was represented by the guardian appointed by the Court who represented his interests throughout the proceedings. Against the said order of the learned Munsif dismissing the application under Section 47 of the Code, the petitioner Paritosh Ganguly has filed this revisional application.

4. It has been contended by Mr. Protap Roy, Advocate appearing for the decree holders opposite parties in support of the application for vacating the interim order that as the judgment debtor petitioner of the revisional application, Paritosh Ganguly, was represented by Court throughout the proceedings of the suit and the said guardian was not discharged by the Court after attainment of majority by him in 1975 the decree passed is the suit is binding on him. It is submitted that it was the duty of the minor defendant after attainment of majority to bring that fact to the notice of the Court and appear in the suit to contest the same as a major person and as he failed to do so, he is bound by the decree passed against him along with others and cannot challenge it as a nullity. In this connection, he has referred to the provisions of Order 32 Rule 3, Sub-rule (5) of the Code and the decisions reported in the case of Ratan Prosad v. Bridhi Chand, AIR 1939 Pat 601 in which a Division Bench of the Patna High Court has held that where there was a suit against a minor represented by: guardian ad litem and the defendant became major after the preliminary decree the final decree passed without removing the guardian ad litem and without describing the defendant as major is not a nullity and that the same considerations apply to execution proceedings, In coming to the said decision, the learned Judges of the Division Bench referred to the provisions of Sub-rule (5) of Order 32, Rule 3 and have observed that the effect of this Rule is that a guardian ad litem does not cease to function automatically on a minor attaining his majority. He is to be discharged and as the minor who has attained majority is the best person to know the date of his attaining: majority, it is for him to come to Court and apply for the discharge of the guardian and to take up the defence of the suit personally. In support of this view reference has been made to the decision of the Madras High Court in the case of Sanyasi v. Yerran Naidu, AIR 1928 Mad 294 where it has been laid down that no provision has been made in the Civil P.C. in respect of a minor attaining majority, therefore, the minor defendant who comes of age may, if he thinks fit, come on the record and conduct the defence himself. If however, he does not do so and allows the case to proceed as though he was still a minor without bringing to the notice of the Court the fact of his having attained majority, then he must be deemed to have elected to abide by the judgment or adjudication by the Court with respect to the matters in controversy on the basis of the suit at the time. A similar view has been taken by this High Court in the case of Drupad Chandra v. Bindumbyi Dasi, AIR 1926 Cal 1053 referred to by their Lordships of the Patna High Court in AIR 1939 Pat 601. The view taken by the Patna High Court in the aforesaid decision has been followed by another Division Bench decision of the same High Court in the case of Gulab Chand v. KishoriKuer, reported in AIR 1942 Pat 348. The said Division Bench was presided over by Harries C. J.

5. The learned Advocate appearing for the petitioner in the revisional application who has opposed the application for vacating or varying the interim order has argued that as the petitioner judgment-debtor Paritosh Ganguly had attained majority in 1975 he could not be represented by his mother as guardian and the subsequent proceeding in the suit resulting in the decree is not binding on him. There could not be any proper representation of the said petitioner on whom no summons or notice of the suit was issued and who was not given any opportunity of appearing and contesting the suit. In this connection, he has relied on a decision of the Madras High Court in the case of Sherija Bi v. V. Pillai, AIR 1976 Mad 262 in which the learned single Judge of the Madras High Court has held that where a person had attained majority on the date of institution of the suit and the suit was brought against him describing him as a minor and his mother had been appointed as his guardian in that suit, there was no proper representation of the said defendant and the decree passed in such suit is a nullity. The distinguishing feature of the case cited by Mr. De is that there, on the date when the suit was instituted the defendant was a major but he was sued as a minor and the Court appointed his mother as his guardian. But in the present case, the judgment-debtor petitioner of the revisional application was a minor on the date when he was brought on record in the proceedings of the ejectment suit as one of the heirs and legal representatives of the original defendant in 1970 and a guardian was appointed by the Court to represent him and later he attained majority in 1975. No doubt, in decisions relied on by Mr. Roy the minor defendant attained majority after the preliminary decree and final decree was passed against him while he was on record as a minor represented by guardian. But the legal position that follow from the provisions of Sub-rule (5) to Rule 3 of Order 32 of the Code has been clearly set out in the decision of the Division Bench of the Patna High Court reported in AIR 1939 Pat 601 as referred to earlier and it is consistent with the view taken by the decision of this Court reported in AIR 1926 Cal 1053. In the present case, it was the duty of the defendant Paritosh Ganguly after attainment of majority to appear in the suit and apply for discharge of the guardian to enable him to defend the suit personally. As he failed to do so and allowed the suit to proceed as though he was still a minor without bringing to the Court's notice the fact of his attaining majority, the decree passed against him is binding on him and it cannot be challenged as a nullity. I therefore, allow the application for vacating or varying the interim order.

6. Civil Order is treated as on day's list and it is dismissed. The stay order is vacated.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //