GANESH DAS Vs. DARSHAN PRASAD AND OTHERS

JUDGEMENT

(1.) THIS is a decree -holder's appeal against the judgment dated 5 - -8 - -1960 passed by Shri S.N. Harkauli, Addl. Civil Judge, Deoria allowing the judgment -debtors' appeal and dismissing the execution application filed by the decree -holder.

(2.) THE relevant facts are that the Appellant -decree -holder brought a suit against Gunraji, the widow of one Mangal and her minor sons. At the request of the Plaintiff decree holder, a notice was issued to Gunraji to find out if she had any objection to her being appointed as guardian ad litem of her minor sons. In the meantime, Gunraji on her own behalf and on behalf of her minor sons entered into a compromise with the Plaintiff and on the basis of the compromise the suit was decreed. It was overlooked by the court below that the notice till then had not been served on Gunraji and she had not been appointed guardian ad litem of her minor sons. In the execution proceedings the objection application in question was filed by the judgment debtors, who were minors in the original suit in which the decree sought to be executed was passed Under Section 47 Code of Civil Procedure. The plea taken was that as the minors were not properly represented by a guardian ad litem duly appointed by the court below, the decree sought to be executed was a nullity against the minors.

(3.) INSPITE of service of notice to Respondents judgment debtors did not put in an appearance in this Court. It was contended by the learned Counsel for the Appellant that the learned Munsif as execution court rightly dismissed the objection application moved by the Respondents as in an objection Under Section 47 Code of Civil Procedure the court executing the decree could not go behind the decree in order to find out whether the decree was a nullity. In support of this contention the learned Counsel relied on the observations made in Mahabir Singh v. Narain Tewari : AIR 1931 All. 490 (F.B.) and in Topanmal Chhotamal v. Kundonmal Gangaram : AIR 1960 SC 388.