BALASUBRAMANIAN Vs. TINNEVALLY DISTRICT PERMANENT FUND LTD

JUDGEMENT

(1.) THERE is no substance in this appeal. The appeal is against an order passed by the learned Subordinate Judge of Tuticorin, dismissing an application made by the appellant before us. In execution of the decree in O. S. No. 49 of 1955 on the file of that Court, property belonging to the minor judgment-debtor had been sold and the application out of which this appeal arises was filed by the minor through his maternal uncle Arumugham, to set aside the sale under Order 21. Rule 90, C. P. C. There was also a prayer to dispense with the security. Actually, Arumugham the person who purported to file the application on behalf of the minor was not the guardian ad litem in the suit nor was he the guardian acting for the minor in the execution proceedings. The mother was the original guardian of the minor but she was removed on an application made by the maternal grandfather. The person who made the present application once before tried to remove the maternal grandfather and get himself appointed as guardian instead, but his attempt failed and the Court refused to bring him on record as the guardian of the minor. The learned Judge has held that the application was not maintainable because the maternal grandfather could not file the application on behalf of the minor because he was not the guardian ad litem.

(2.) BEFORE us the learned counsel for the appellant contended that in the interests of the minor any person could file an application under Order 21, Rule 90, of the code, to set aside the sale of the minor's property. In support of this contention the learned counsel relied upon the judgment of Clark J. in Venkatarao v. Rattamma, 1946-2 Mad LJ 473: (AIR 1947 Mad 244), and that of the Judicial commissioner of the Nagpur Chief Court in Shantabai v. Laxmichand, AIR 1930 nag 185. The judgment of Clark J. unfortunately is not of much assistance. There are observations in the course of his judgment which do help the appellant and they are these :

(3.) THE appeal is dismissed.