KARUPPA GOUNDAN Vs. KOMARASWAMI GOUNDER

JUDGEMENT

(1.) This appeal is by the plaintiff in a suit for recovery of possession of properties of which respondent 2's father became purchaser in execution of a small cause decree obtained by him against the plaintiff's father. The plaintiff's complaint is that the execution of the decree levied in respect of the suit properties which had become the plaintiff's under a settlement deed between the plaintiff, his father and his paternal uncle is not binding upon him. Prior to the present suit, there was an earlier one by the plaintiff represented by his mother as his next friend for the same reliefs in which the question of the real or nominal character of the settlement was gone into. The learned District Munsif who tried that suit decreed it holding that the settlement was real and operative. On appeal taken by the present respondent that decision was reversed, without the mother of the plaintiff on whom notice had been served as the guardian ad litem of the plaintiff appearing. The present suit is by that very plaintiff for the very relief which the appellate Court on the former occasion had refused him. The suit has been dismissed by both the Courts below on the ground that the mere non appearance of the mother in the appeal in the former suit does not necessarily give rise to an inference of gross negligence, that the appellate decree in the former suit is not a nullity, and that the present suit without a prayer for the setting aside of the former appellate decree does not lie.

(2.) I have after the careful consideration bestowed by me on the case since reservation of judgment arrived at the conclusion that this appeal must fail. I am not satisfied as clearly as the lower appellate Court that the failure of the plaintiff's mother to appear in appeal in order to sustain the judgment and decree of the trial Court which had gone in favour of the plaintiff was because she "might have thought that she would serve the interests of her son best by not appearing in the appeal." It is true that, as pointed out by the lower appellate Court.

(3.) The cases cited for the appellant from Maheshchandra v. Manindra Nath, I. L. R. (1941) l Cal. 477 : (A.I.R. (28) 1941 Cal. 401) and Ramanathan Chettiar v. Palaniappa Chettiar, 57 Mad. 973: (A. I. R. (21) 1934 Mad. 386) do not, in my judgment, assist him. The former of the rulings only lays down that