D S JAYADEVIAH Vs. NARASIMHA GOWDA

JUDGEMENT

(1.) The appellants are plaintiffs, the respondents are defendants. The suit is for a declaration that the decree obtained by the 1st defendant in OS. 323/47-48 on the file of the Munsiff-Magistrate, Tiptur, is void and not binding on the plaintiffs, for recovery of possession of the schedule property and also to declare that the execution proceedings in Ex.No.691/50-51 on the file of the Munsiff, Tunkur and the sale held thereon do not bind the the plaintiffs and for mesne profits from the date of suit. The 1st defendant had filed OS.323/47-48 against the plaintiffs for recovery of Rs. 1,000 and interest thereon due on a prcnote executed by Siddananjappa, the father of the 1st plaintiff. The 1st plaintiff was a minor, the second plaintiff, mother of the 1st plaintiff was the proposed guardian of the 1st plaintiff. The plaintiffs alleged that the 1st defendant managed to, see that endorsements of refusal were written both in the summons and in the notices issued on the application for appointment of a guardian, and thereafter he got the second defendant appointed as Court guardian, to conduct the pro,ceiedings on behalf of the 1st plaintiff and obtained a decree against the plaintiffs, that the 1st plaintiff was not at all served with summons in the suit. It was also alleged that the first defendant fraudulently prevented the plaintiffs from having knowledge of the suit. The pronote on the, basis of which the suit was filed by the 1st defendant is alleged to have been a forged document. The second defendant is a Pleader. It was alleged that he did not raise proper defences and that he is guilty of gross negligence and that he is colluding with the 1st defendant in that suit. It is further alleged that the 1st defendant got the decree transferred to, the Court of the Munsiff at Tumkur, with a view to prevent the plaintiffs from knowing the proceedings and has not proceeded against the properties of the plaintiffs in their village with the said purpose-in view. The property has been allegedly sold for a low sum of Rs.721 and has been purchased by the 1st defendant himself. The plaintiffs had also filed an application under Or.21, R.90 CPC for oetting asida the sale. But that application was dismissed.

(2.) The 1st defendant pleaded that the Court guardian was got appointed since 2nd plaintiff refused to receive the summons and notices and that he effectively represented the 1st plaintiff in the suit. He also pleaded that the pronote had been executed by Siddananjappa for consideration and denied that there was any collusion with the Court guardian. The second defendant also denied the plaint allegations of fraud and collusion, as wel as negligence on his part in conducting the suit on behalf of the minor 1st plaintiff.

(3.) Defendant 1 and Siddananjappa-the father of the 1st plaintiff, appear to have been on friendly terms. They purchased three different lands at various times jointly. On 29-11-1945, defendant 1 and Siddananjappa jointly purchased an arecanut garden from Nagamma for Rs.2,000 under Ext.D4. Towards his share of the consideration, Siddananiappa executed a promissory note on 30-11-1945 for Rs. 1,000 in favour of the 1st defendant along with the consideration receipt, Ext.D2. This transaction gave rise to litigation. One Srinivasa Rao filed OS.37/46-47 in regard to this property which ended in a compromise under which both Siddananjappa and defendant 1 gave up the land and Srinivasa Rao deposited in Court Rs.2,000 to be, paid to both of them. Before the amount was withdrawn by them, Siddananjappa died. The 1st plaintiff was about 10 years old then. Thereafter, the 1st defendant filed OS.323/47-48. It war, decreed on 30-9-48 for Rs.1666-9-0. Defendant got attached the half share of Siddananiappa in the amount rf Rs.2,000 in deposit in Court in OS.37/46-47. Thereafter he sued out execution for the balance of Rs. 666-9-0 and brought the suit property to sale. In the suit property Siddananjappa bad a 4 share.