TIMMAPPA SHETTI Vs. SHESHA SHETTI

JUDGEMENT

(1.) This is an appeal from an order in execution and appellants are the 5th and 6th defendants in the suit. Their contention in the court below was that the present application for execution was barred as against them. They alleged that no guardian ad litem was appointed for them under Section 443 of the Code of Civil Procedure either in the suit or in previous execution proceedings. The judge has found, however, that although no guardian ad litem was formally appointed as provided by Section 443 yet the 2nd and 3rd defendants were ordered to defend the suit on their behalf, that they practically did so and that they continued to do so in previous execution proceedings though no Separate notices were served on the petitioners. He was of opinion that as the 2nd and 3rd defendants practically acted as their guardians both in the suit and in execution proceedings, omission formally to appoint them as guardians ad litem was an irregularity or error of form by which they were not prejudiced. In their petition, the appellants stated that a guardian was appointed for them only to conduct proceedings in the suit and complained that no guardian was similarly appointed nor notices served on them in the previous execution proceedings. Their present allegation that there was no guardian appointed for them in the suit as well as in previous execution proceedings is an after-thought. The question, however, for determination is, whether the omission formally to appoint a guardian ad litem in previous execution proceedings bars the present application for execution. Upon the facts found the error appears to be merely one of form and not fatal to the suit or previous execution proceedings, Suresh Chunder Wum Chowdhry v. Jugut Chunder Deb,, I. L. R 14 C 204 and Natesayyan v. Narasimmayyar,, I. L. R 18 M 480

(2.) Again in the case of Bissessur Lall Sahoo v. Maharajah Luchmessur Singh,, L. R 6 I. A 233 the Judicial Committee observe that in execution proceedings, the court will look at the substance of the transaction and will not be disposed to set aside an execution upon mere technical grounds when they find that it is substantially right.

(3.) The appeal fails and is dismissed with costs.