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Duni Chand Vs. Hira Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Revn. No. 22 of 1955
Judge
Reported inAIR1956HP60
ActsCode of Civil Procedure (CPC) , 1908 - Order 32, Rule 3(5)
AppellantDuni Chand
RespondentHira Singh and ors.
Advocates: Paras Ram, Adv.
DispositionPetition dismissed
Cases ReferredNazir v. Dharam Pal
Excerpt:
- .....of the regular suit and a guardian ad litem appointedin the civil suit continues to be guardian ad litem in execution proceedings and for the purposes of appeal. after a decree passed against minor and the case had been transferred to another court for execution, the guardian ad litem did not wish to continue and so another guardian ad litem was appointed. the proceedings in execution were, however, conducted by a third person and during such proceedings he appealed on behalf of the minor : held that where there was a properly constituted guardian ad litem, no one else could represent the minor and hence the appeal must be dismissed.'' (c) 'shiva sahai ram v. sundar mandal', air 1948 pat 91 (c), where a division bench of that high court held that: ''even according to the law, prior to.....
Judgment:
ORDER

Ramabhadran, J.C.

1. In this revision petition, the point for determination is : Whether the Courts below have erred in holding that the previous execution petition, filed by Bansi Lal on behalf of his minor sons, Randip Singh and Jaswant Singh, was an application, made in accordance with law, within the meaning of Article 182, Limitation Act?

Learned counsel for the petitioner urged that since the Court Nazir had been appointed guardian ad litem of the aforesaid minors during the pendency of the suit, that appointment continued during execution proceedings and, consequently, none but the Nazir could apply for execution. In support of his arguments, learned counsel relied not only on the provisions of Order 32, Rule 3 (5), Civil P. C., but also on the following rulings :

(a) 'Muthia Chettiar v. Govinda Dass', AIR 1921 Mad 599 (A), where a learned Judge of that High Court remarked that:

''An application for execution is a proceeding in a suit. Order 22, R. 10 applies to execution proceedings.' (b) 'Singaram v. S. P. R. Somasundaram', AIR 1939 Rang 444(B), where Wright J., held as follows:

'Execution proceedings are only a continuation of the regular suit and a guardian ad litem appointedin the civil suit continues to be guardian ad litem in execution proceedings and for the purposes of appeal.

After a decree passed against minor and the case had been transferred to another Court for execution, the guardian ad litem did not wish to continue and so another guardian ad litem was appointed. The proceedings in execution were, however, conducted by a third person and during such proceedings he appealed on behalf of the minor : Held that where there was a properly constituted guardian ad litem, no one else could represent the minor and hence the appeal must be dismissed.''

(c) 'Shiva Sahai Ram v. Sundar Mandal', AIR 1948 Pat 91 (C), where a Division Bench of that High Court held that: ''Even according to the law, prior to the insertion of sub-r. (5) in Order 32, R. 3 by the Amending Act of 1937, a guardian ad litem appointed in the suit continued to be so in the execution proceedings till his removal or death.'

2. The learned District Judge based his decision largely on -- 'Sarat Chandra v. Prabashi', AIR 1952 Orissa 229 (D), where a Division Bench of that High Court, following -- 'Firm Annu Mal Har Narian v. Brij Lal', AIR 1941 Lah 327 (E) and other decisions, observed as follows:

'A review of these authorities goes to show that the test whether the non-representation of a minor in execution proceedings would vitiate the sale is whether, in fact, the estate has been represented or not. If there is some adult male member of the family, who represents the estate, the sale must be upheld, although there is no proper appointment of a guardian for the minor or he has not been properly represented otherwise.''

The learned District Judge has also referred to--'Nazir v. Dharam Pal', AIR 1941 Lah 47 (F), where Beckett, J., pointed out that:

'Order 32 has no direct application to execution proceedings, so that the Courts, which have to deal with such proceedings cannot be bound down by mere technicalities, arising from the wording of a particular rule of that Order; but the broad principles contained in the rules relating to suits can be applied to execution proceedings when they represent elementary principles as in the matter of res judicata.''

3. While it cannot be disputed that it was open to the Court Nazir to apply for execution on behalf of the minors as their guardian ad litem, nevertheless, I concur with the view of the Court below that the omission on his part to do so, did not debar Bansi Lal (the father of the minors) from making such an application.

I agree respectfully with the principles laid down in AIR 1941 Lah 47 (F) and AIR 1952 Orissa 229 (D) (referred to above). No case is made out, therefore, for interference in revision.


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