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Khajeh SalaluddIn and ors. Vs. Mt. Afzal Begum and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1925Cal23
AppellantKhajeh SalaluddIn and ors.
RespondentMt. Afzal Begum and anr.
Cases ReferredChutterput Singh v. Sait Sumari Mal
Excerpt:
- .....right in holding that the applications for execution are proceedings in suit and the guardian ad litem appointed in the original suit would be guardian ad litem in the execution proceeding unless he be removed by an order of the court and a new guardian ad litem appointed. we are unable to agree that the guardian ad litem appointed in the suit continues as such without a fresh appointment during the execution proceeding. as was observed by lord lynd-hurst in kinsman v. kinsman (1831) 1 r. and m. 622, in order to constitute litis pendentia there must be a continuance of litis contestates, and, therefore, if the suit is ended by decree, there is no longer any lis pendens.3. the learned vakil who appeared for the respondent was unable to show us any authority to support the proposition.....
Judgment:

1. On the 24th February, 1909 one Mt. Jahura Begum obtained a decree for Rs. 25,000 and costs against her two minor children and her minor step-son. On the 8th October, 1920 an application was made to this Court on the Original Side for an order that the certified copy of this decree together with a certificate of non satisfaction be transmitted to the Court of the District Judge of Dacca for execution. This application was made by one Afzal Begum who alleged that she was the assignee of the decree. On the 7th May 1920 the Master on the Original side of this Court transferred the decree to the Dacca Court for execution. With the copy of the decree was forwarded a certificate signed by a Judge of this Court under Order XXI, Rule 6. The District Judge of Dacca transferred the execution case to the Subordinate Judge, 1st Court. On the 2nd December 1921 an application for execution of this decree was filed in that Court and that is execution case No. 120 of 1920. In that application three judgment-debtors were named and were described as represented by H. C. F. Meyer, Manager, Court of Wards, Dacca. The Court of Wards manager objected to the execution of the decree and his objection was dealt with as Miscellaneous Case 42 of 1921. The execution was kept pending until the disposal of the miscellaneous case. But in the end the assignee of the decree-holder allowed the execution case to be dismissed on the allegation that there was some mistake in the application for execution. On that execution case being dismissed the miscellaneous case was also dismissed. Then on the 2nd December, 1921 a second application for execution was made and in this application the minors were described as 'being represented by Babu Anil Nath Basu, vakil, High Court who has been appointed guardian ad litem by the High Court.' This gentleman is a solicitor who had been appointed guardian ad litem of the minors in the original suit. In this application the assignee of the decree-holder asked for attachment of the money of the minor judgment-debtors in the hands of H. C. F. Meyer, manager of the Court of Wards, Dacca. In this execution case also the manager filed a petition objecting to the execution of the decree which was numbered Misc. case 20 of 1922. Objection Was taken on several grounds with most of which we are not concerned in the present appeal. The learned Subordinate Judge held that the manager had no loans standi to represent the minors in this case but he nevertheless went into the merits of his objection and decided amongst others the issue of limitation against him.

2. This appeal is preferred on behalf of two of the minor judgment-debtors by Mr. Meyer. The third judgment-debtor had attained majority before this appeal was filed. As the appeal has been argued before us the main point that arises is whether the lower Court was right in holding that the applications for execution are proceedings in suit and the guardian ad litem appointed in the original suit would be guardian ad litem in the execution proceeding unless he be removed by an order of the Court and a new guardian ad litem appointed. We are unable to agree that the guardian ad litem appointed in the suit continues as such without a fresh appointment during the execution proceeding. As was observed by Lord Lynd-hurst in Kinsman v. Kinsman (1831) 1 R. and M. 622, in order to constitute litis pendentia there must be a continuance of litis contestates, and, therefore, if the suit is ended by decree, there is no longer any lis pendens.

3. The learned vakil who appeared for the respondent was unable to show us any authority to support the proposition that the guardianship of the guardian ad litem appointed during the suit continued after the litigation had been terminated by the final decree. He drew our attention to certain ruling in which it had been held that the guardian for the suit continued during subsequent appeals from the decree. But this is irrelevant to the question whether he continued as such during the execution proceedings. We are speaking now of simple decrees as the decree in this suit is for the payment of money and not with relation to mortgage decrees or decrees for delivery of accounts. The only case of those cited which appears at all relevant on this point is the case of Krishna Per-shad Singh v. Gosta Bihari Kundu (1907) 5 C.L.J. 434. It was there held that where a person is named as the guardian ad litem in an application for execution, and notice under Section 248, Civil P.C., is issued upon him as such guardian, it must be presumed that he has been appointed guardian by implication by the Court. But to hold that a person who has been named in the execution proceeding as guardian ad litem may under certain circumstances be presumed to have been appointed is a very different matter from holding that the guardian during suit continues to be the guardian without fresh appointment in the execution proceeding.

4. However, this case is clearly distinguishable on the ground that it was decided under the Civil Procedure Code of 1882. Under the Code now in force of 1908 a guardian ad litem of a minor cannot be appointed without his consent and there can, therefore, now be no presumption of appointment from the mere issue of notice.

5. We must hold therefore that the appointment by the High Court of Babu Anil Nath Basu as guardian ad litem during suit was no bar to the appointment of the Court of Wards manager as guardian ad litem in the execution proceeding. We are also of opinion that when the Court of Wards manager appeared and asked to be appointed as guardian ad litem he should have at once been so appointed under the provisions of Section 51 of the Court of Wards Act. Though this section was not applicable to the original suit in consequence of the provisions of Section 58 it became applicable as soon as the execution proceedings were started at Dacca. In spite of its finding that the manager had no locus standi the Court did determine the issue treating him as a party to the suit; so we can determine whether his finding on this contested issue of limitation was a correct finding. Obviously the second application for execution would be time-barred in the face of it.

6. The respondent relied on the proceeding resulting from the petition filed by Afzal Begum on the 30th April, 1920 as a revivor to extend the period of limitation under Article 183 of the First Schedule to the Limitation Act. We hold that the Full Bench decision in Chutterput Singh v. Sait Sumari Mal(1916) 43 Cal. 903 is authority for holding that this application was not a revivor.

7. We have called for the original petition from the Original Side of this Court, and we find that it contains no prayer for execution of the decree. The only prayer contained in the petition has been set out above. On this petition the order passed was first:-' Let notice issue.' Then on the 17th May, 1920, there was the following order:-' Upon reading the notice and affidavit of service and upon hearing the attorney for the applicant (the other parties not appearing and no cause being shown) the usual order is made for transmission. Leave granted to proceed with execution.' It is contended that this was a judicial determination that the right to execute the decree still subsisted. We are unable to see how there could have been any such determination.

8. The only questions which arose were whether there had been a valid assignment of the decree and whether there had been any recorded satisfaction of the decree. Until the application for execution was made there was no need for the judgment-debtors even if notice had been served on them to appear and contest the application. They could well wait until the assignee sought to execute the decree. Further it does not appear that any guardian ad litem was appointed for the minor who could have opposed this application on their behalf if it had been thought necessary to do so. Though the judgment-debtors appellants are described as infants in the petition no guardian at litem is named in the petition, and it is clear that no such guardian was appointed by the Court.

9. If as we hold, there was no revivor, the application for execution was barred by limitation and should have been rejected on that ground.

10. It is contended that Khejah Nuruddin who has since attained majority has filed an application in the lower Court consenting to the decree being executed as against him. No order was passed on that petition and We must hold under Rule 4, Order XLI, Civil Procedure Code, that the order should be set aside in his favour also.

11. The result is that this appeal is decreed. The order of the lower Court is set aside and the application for execution filed on the 2nd December, 1921, is rejected.

12. The appellants will get their costs from the decree-holder respondent in this and in the lower Court. We assess the hearing fee at ten gold mohurs.


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