1. The decree-holder is the appellant before us. He instituted a suit for money in the year 1934 against two persons, Gobindalal Roy Chowdhury and Sudhir Chandra Roy Ghowdhury who was a minor at the date of the suit, and is still a minor. In the suit his proposed natural guardian did not appear with the result that the Court appointed a pleader named Mr. Golam Mowla as his guardian ad litem. The suit terminated in a decree in favour of the appellant in July 1935. Shortly after that a case under Act 8 of 1890 was started in the Court of the District Judge within whose jurisdiction the minor resided and his brother-in-law, Gajendralal Roy was appointed by the District Judge as the guardian of his person and property. In 1936 the appellant started his first execution (numbered 122 of 1936) against the two judgment-debtors, Gobinda and Sudhir. In the application for execution Sudhir was described,as a minor being represented by his certificated guardian Gajendralal Eoy. After this execution was started Gajendra as guardian filed a suit to set aside the decree. While that suit was pending, he appeared in the execution proceedings of 1936, namely money execution case No. 122 of 1936 and on behalf of the minor he made an application to the executing Court for stay of further proceedings in execution. In the title suit which was instituted to set aside the decree he also applied for injunction, and obtained it restraining the further progress of execution case No. 122 of 1936. That suit however was ultimately dismissed for default. The executing Court was notified that by reason of the dismissal of the suit the injunction order had spent its force. The executing Court on being apprised of that fact passed an order on 28th March 1937 in these terms:
Copy of order received from local second Court. Stay order vacated. The execution case has become old and it is unnecessary that it should be kept pending. Ordered therefore that the case be struck off. The decree-holder -will get costs of this execution and the attachment will subsist.
2. Thereafter on 2nd June 1937, the appellant decree-holder filed an application for execution which was numbered 973 of 1937. In this application the minor was described as being represented by his certificated guardian, Gajendra Lal Roy. While this execution was pending in the Court of first instance Mahaprovu Roy, another brother-in-law of the minor Sudhir, intervened. He made an application describing himself as the next friend of the minor Sudhir and in that application he said that the minor was not being properly represented in the execution case, inasmuch as Gajendra was not the guardian ad litem nor he could be so. The learned Munsif overruled this objection and held that Gajendra had been validly appointed guardian ad litem in the execution proceedings, and inasmuch as he had not been removed and no case for his removal had been made out by Mahaprovu, the execution proceedings were in order. He therefore directed the execution proceedings to proceed. Against this order Mahaprovu preferred an appeal to the District Judge of Sylhet and the appeal was heard by the learned Subordinate Judge, First Court. The learned Subordinate Judge has held that by reason of Sub-rule (5) of Rule 3 of Order 32, Civil P.C. which sub-rule had been introduced into the Code by the amending Act of 1937, which came into force on 5th April 1937, the position was that the guardian appointed in the suit, namely Mr. Golam Mowla, continued to be the guardian ad litem in the execution proceedings in the eye of the law, and the decree-holder was not within his rights in proposing in the execution proceedings a new guardian Gajendra. He therefore said that in any event, as there had been no formal order of appointment, and inasmuch as Gajendra had not come forward to accept the guardianship he was not a guardian ad litem. The execution proceedings, he held, must be taken and continued with Mr. Golam Mowla as guardian ad litem. As that has not been done, it was not in order. He accordingly dismissed the execution case. It is against this order that the present appeal has been preferred.
3. In this Court, the Deputy Registrar has been appointed guardian ad litem of the minor, and we have heard Mr. Mazumdar appearing on behalf of the Deputy Registrar. As Mahaprovu has been made a party respondent, and as on the finding of the Court below, he could not be regarded as guardian ad litem of the minor, he has no locus standi to be heard. As his advocate appeared we have heard him amicus curiae. In our judgment the order of the learned Subordinate Judge cannot be supported. He has overlooked the fact that in 1936 Gajendra appeared as guardian of the minor in execution case No. 122 of 1936. The learned Subordinate Judge was therefore wrong in saying that in 1936 Gajendra had not signified his acceptance of the position ; as a guardian ad litem. It now remains to see whether the learned Subordinate Judge was right in the view he had taken that Mr. Golam Mowla continued as guardian ad litem in the eye of the law in the-execution proceedings.
4. We have already stated that the first execution was started in 1936. That application for execution was disposed of by the-order of the executing Court dated 20th March 1937. The order we have fully quoted above. The order does not say that the execution case was dismissed. It says that it was struck off as it had become old, and the decree-holder was awarded cost. The attachment also continued. This shows that the decree-holder was ready and willing to proceed with the execution, but for the convenience of the Court that execution case was only removed from the pending file. The application for execution which was, made in 1937 and numbered 973 of 1937 must accordingly be held to be a continuation or revival of the previous application for execution which had been made in 1936. On this point the law is settled, and a case of stronger description from the point of view of the judgment-debtor supports the view-we are taking, for there the order was not for striking out the execution proceedings, but the order was in terms, an order of dismissal of the execution application for default, and in that order costs had been awarded to the decree-holder. This Court held that the previous execution case had only been removed from the file or struck, off for the convenience of the Court: Ajodhya Nath v. Srinath Chandra (1921) 8 A.I.R. Cal. 338. The position therefore is this, that the application which was numbered 973 of 1937 must be regarded as continuation of the application for execution of 1936, that is to say the rights of the parties must be governed as also the question, of procedure, as if the application for execution which was before the Court was the application which had been made in-1936.
5. Now so far as the Calcutta High Court is concerned, up to the year 1936 there was a strong current of opinion, the decisions were almost uniform, that a guardian ad litem appointed in a suit ceased to be the guardian ad litem on the passing of the; decree and that the decree-holder was bound to have a new guardian ad litem appointed at the execution stage. The person may be the same, namely the person proposed as guardian in the execution proceedings may be the same as the guardian who had been appointed in the suit but there must be a fresh proposal and an appointment afresh at the execution stage on the view that the guardian who represented the minor in the suit, ceased to be a guardian automatically as soon as the decree was pronounced in the suit. It was only in 1937 that a discordant note was sounded in this Court in Brojendra Kishore v. Shamser Ali : AIR1937Cal259 , and immediately thereafter the Legislature intervened and made an amendment of Rule 3, Order 32 by adding a Sub-rule (5). That amendment which came into force on 5th April 1937 is to the effect that the guardian appointed in the suit continues to be the guardian in all proceedings in connexion with the suit including proceedings in execution. In 1936 when the application was put in, according to the settled practice of the Calcutta High Court, settled by decisions of this Court (although the other High Courts had taken a different view) the decree, holder was under the necessity of having appointed a new guardian in the execution proceedings. The appellant proceeded on that view of the law and proposed Gajendra Lai Roy as guardian. According to that view of the law Mr. Golam Mowla ceased to be a guardian ad litem on the passing of the decree. Gajendra was proposed as guardian ad litem and he appeared in the execution proceedings on behalf of the minor and moved an application as the guardian of the minor.
6. The position therefore is that according to the law as understood in Bengal in 1936, Gajendra was rightly proposed as guardian ad litem. There was, no doubt, no formal order appointing him as guardian, but he appeared and represented the minor. In these circumstances the absence of a formal order would not be much material: vide 30 Cal 1021.3 We accordingly hold that Gajendra was validly appointed guardian in Execution Case No. 122 of 1936, and inasmuch as we have already held that the present proceedings are to be regarded as continuation of that execution case, there is no point in the view of the learned Subordinate Judge that Mr. Golam Mowla is Still the guardian ad litem as he has not been removed, and that view cannot be supported. The appeal is allowed but without costs. We accordingly set aside the order of the learned Subordinate Judge and restore that of the Munsif.