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Rakhal Chandra De Vs. Mt. Kumudini Debya - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1927Cal930
AppellantRakhal Chandra De
RespondentMt. Kumudini Debya
Cases Referred and Jinnat Ali v. Kailas Chandra Chowdhury
Excerpt:
- .....the appellant at the time of the execution proceedings out of which this appeal arises was not properly represented. the only point which is taken on behalf of the appellant by the learned vakil who appears for him is that inasmuch as there was no formal appointment of a guardian ad litem in the execution proceedings the execution proceedings are invalid, and the sale is not a good sale as against the minor. it is conceded that the minor was properly represented in the proceedings up to the passing of the decree by the sheristadar of the court. it also appears that in the execution proceedings notices were properly served upon the sheristadar of the court, although some other person than the person who was a guardian ad litem during the trial was then filling that office. in fani.....
Judgment:

1. In our opinion there is no substance in this appeal. Both the Courts below have rejected an application by the appellant to set aside a sale partly for irregularities to which Order 21, Rule 90, Civil P.C. applies, and partly under Section 47 upon the footing that the appellant at the time of the execution proceedings out of which this appeal arises was not properly represented. The only point which is taken on behalf of the appellant by the learned vakil who appears for him is that inasmuch as there was no formal appointment of a guardian ad litem in the execution proceedings the execution proceedings are invalid, and the sale is not a good sale as against the minor. It is conceded that the minor was properly represented in the proceedings up to the passing of the decree by the sheristadar of the Court. It also appears that in the execution proceedings notices were properly served upon the sheristadar of the Court, although some other person than the person who was a guardian ad litem during the trial was then filling that office. In Fani Bhusan Bhutan v. Surendra Nath Das A.I.R. 1921 Cal. 476. Sanderson, C.J., and Richardson, J., passed the following observation:

It is true that Surendra Nath's mother had died and that at the stage of execution he had in, fact no guardian on the record. But as I have always understood the matter, the provisions of Order 32, relating to suits by or against minors, have no direct application in proceedings in execution after the rights of the parties have merged in a good and valid decree. At any rate the rules in Order 32 are not so strictly applied at that stage. The 'Lis' in respect of which it is essential that a minor defendant should be represented by a duly appointed guardian is at an end and execution having taken place, in determining whether the minor was sufficiently represented in the execution proceeding, the Courts are at liberty to look at the substance of the transaction.

2. Now, looking at the substance of this transaction we have no doubt that the minor was properly represented in the execution proceedings. Further, Fani Bhusan Bhuian v. Surendra Nath Das A.I.R. 1921 Cal. 476 and Jinnat Ali v. Kailas Chandra Chowdhury : AIR1924Cal847 are authorities in support of the proposition that even if there was no due representation of the minor in the execution proceedings had in furtherance of a decree in a suit in which the minor was properly represented that fact is not a ground upon which the sale can be set aside.

3. For these reasons, in our opinion, the appeal fails and must be dismissed with costs; the hearing-fee being assessed at two gold mohurs.


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