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Kailash Chandra Kandor Vs. Harihar Patra and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1919Cal918,47Ind.Cas.928
AppellantKailash Chandra Kandor
RespondentHarihar Patra and ors.
Excerpt:
appeal - minor respondent--appellant, failure of, to furnish security for costs of guardian ad litem--dismissal of appeal against minor--transfer of appeal--decree against monir--dismissal order, effect of. - .....a pleader. to appear on behalf of the minor. but before that--almost a month before--the district judge had himself appointed an officer of his own court to be the guardian ad litem of the minor and, the appellant having failed to give proper security for the costs of the guardian ad litem appointed by the district judge, the appeal as against the defendant no. 1 was dismissed. that is how the matter stood at the date of the hearing of the appeal. at the hearing of the appeal what happened was this: the pleader instructed by the officiating nazir of the munsif's court who was so far as i can see, never the guardian ad litem of the minor at all, appeared and argued the case, which he lost and the minor's rights were very seriously prejudiced. seven days after that, the.....
Judgment:

Fletcher, J.

1. This is an appeal by the plaintiff against the decision of the learned Subordinate Judge of Midnapur modifying the dicision of the Munsif of Contai. The suit was brought to enforce a mortgage Amongst, the defendants was a minor, namely the defendant No, 1, who appeared in court through a guardian ad litem. The guardian ad litem appointed in the Munsi's Court was the Nazir, the Chief Ministerial Officer of that Court, and the Nazir seems to have acted all right. That gentleman, however, went on leave when the appeal was preferred against the judgment of the Munsif and the person who was officiating for him was supposed to have succeeded by virtue of his office to the position of the guardian ad litem of the minor defendant No. 1. Whether that was proper or not, it dues not matter. However, the officiating Nazir of the Munsif's Court instructed a Pleader. to appear on behalf of the minor. But before that--almost a month before--the District Judge had himself appointed an officer of his own Court to be the guardian ad litem of the minor and, the appellant having failed to give proper security for the costs of the guardian ad litem appointed by the District Judge, the appeal as against the defendant No. 1 was dismissed. That is how the matter stood at the date of the hearing of the appeal. At the hearing of the appeal what happened was this: The Pleader instructed by the officiating Nazir of the Munsif's Court who was so far as I can see, never the guardian ad litem of the minor at all, appeared and argued the case, which he lost and the minor's rights were very seriously prejudiced. Seven days after that, the Subordinate Judge who heard the appeal was informed of what the District Judge had done, dismissing the appeal as against the minor (sic) No. 1 on the ground that the plaintiff had been in default in not giving security for the costs of the guardian ad litem. Thereupon, the learned Subordinate Judge reviewed his judgment decreeing the suit against the minor defendant No. 1 and in lieu thereof dismissed it as against him. Subsequently the plaintiff made an application to the learned District Judge to pet aside the order or decree dismissing the suit as against the defendant No. 1 for default in finding the costs of the guardian ad litem. That application was not heard, solely owing to the default of the plaintiff. The plaintiff did not provide the necessary materials to enable the Court to adjudicate on that and, having adopted that course, he has only got himself to thank if the ex parte Order of the District Judge dismissing the suit against the minor defendant No. 1 for default is given effect to. The plaintiff had ample opportunity before the learned District Judge for showing that this order of dismissal made by him ought to be set aside. As he allowed that opportunity to pass for his own default, he must be bound by the order of dismissal. That order of dismissal is a perfectly good order until it is set aside. In that view of the case, the present appeal fails and must be dismissed with costs.

Syed Shamsul Huda, J.

2. I agree.


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