MARYACHEVITHITHAN NADAR Vs. VELAYUDHAN PILLAI

JUDGEMENT

(1.) This appeal is by the decree holder against an order in execution setting aside the court sale relating to the decree schedule properties. The sale was on 11.3.1121. It was confirmed on 9.7.1121. The delivery of the property was effected on 27.8.1121. On 31.9.1121, the 13th defendant applied for cancellation of the court sale on the grounds that he knew of it only on 20.9.1121, that the proceedings in execution were invalid and fraudulent, that while he was really a major proceedings were taken as if he were a minor that the execution proceedings were conducted without notice to him and that the sale was invalid. The decree holder auction purchaser objected to the petition and contended that the 13th defendant was still a minor, that even if he had attained majority before the sale took place, the sale would be valid even though notices were issued as if he were a minor, that the petition was barred by limitation as it was filed 30 days beyond the date of the sale, and that the petition was to be dismissed.

(2.) The lower court found that the 13th defendant had become a major in 1118, that the sale held without notice to him was invalid, that the property had been sold for a low amount and that the sale was liable to be set aside as regards the property mentioned in the statement filed by the 13th defendant on 31.2.1122.

(3.) The finding of the court below that the 13th defendant had attained majority in 1118 was not questioned. But it was argued that even if the minor defendant had attained majority during the execution proceedings the guardian or next friend appointed by the court continued to have authority to represent the defendant unless that defendant chose to move the court for the discharge or removal of the guardian or next friend and himself took up the further conduct of the execution proceedings to the extent to which they concerned him as defendant. The execution taken out against the former minor through the guardian who was appointed in the suit and that notice properly served on that guardian would be valid even though notice was not sent directly to that minor defendant who attained majority. Reliance was made on Sivasubramonia Pillai v. Thyammal (1948 TRR 194). The correctness of this decision could not be questioned. But it was seen in this case that this ruling could have no application, for it would apply only when there was a proper representation of the minor by the guardian. It is seen from the records in this case that after the death of the 1st defendant his legal representatives were impleaded as additional defendants 12 and 13 who were minors and their mother was sought to be impleaded as their next friend. Notice of this application was given to the next friend. But she refused to accept the notice as seen from the endorsement made on that notice on 20.6.1112 In spite of such refusal to accept the notice the mother was appointed as the next friend. Such appointment was void and no steps taken in execution would be binding on the minor. If a minor is not represented properly by a next friend in a suit or other proceedings neither the decree nor any order passed in execution would be binding on that minor. Varghese Mathen v. Kochumakkaru Ismail (1943 TLR 444) which is a decision by a Full Bench of five Judges and Pathummal Kannu v. Ananthasubramonia, Aiyer (1944 TLR 618) are direct authorities for this position.