RAM PARI Vs. SITA RAM PANDEY

JUDGEMENT

(1.) THIS is a plaintiffs ap peal which arose in the following circum stances. Sita Ram defendant had commenc ed an action for partition of the property in suit in the Court of Munsif, Deoria, being unit No. 3171 of 1957 - Sita Ram v. Shital Pandey and others. The present plaintiff ap pellant was also made a party to that suit alleging that Sita Ram had 1/3rd share in it. That suit was decreed. On appeal the decree passed in that suit was confirmed. The pre sent plaintiff then commenced another action which has given rise to this appeal for can cellation of the decree passed in the suit No. 3171 of 1957 and the appellate decree dated 21st August, 1961, inter alia, on the grounds that he was a minor and the ap pointment of the alleged guardian in the suit No. 3171 of 1957 by the Court was. illegal and without jurisdiction. He con tended that die defendant No. 4 was ap pointed his guardian-ad-litem but he did not take proper defence in the case nor did he produce necessary evidence on behalf of the minor which resulted hi miscarriage of justice. He was thus greatly prejudiced and sought cancellation of the aforesaid decrees.

(2.) THE suit was resisted by the defen dant No. 1 Sita Ram. He denied the allega tions made on behalf of the plaintiff and contended that the appointment of the guar dian-ad-item was legal and in accordance with law. He also alleged that no prejudice was caused to the plaintiff. The guardian-ad-tem was not negligent and the plaintiff was, therefore, not entitled to the reliefs claimed.

(3.) IT was urged by the learned coun sel for the appellant that the provisions of Order 32 of the Code of Civil Procedure were not complied with while appointing the guardian-ad-litem of the plaintiff, who was at the relevant time a minor and contended that no notice to the minor and to the pro posed guardian was given by the Court as required by sub-clause (4) of Rule 3 of Order 32, Civil P. C. He, therefore, con tended that the appointment of the defendant No. 4 as guardian-ad-litem in the case was illegal and that in fact the Court had no jurisdiction to appoint him as such. The learned counsel for the respondent, however, urged that the procedure laid down in R. 3 of O. 32 was followed and at any rate non-observance of the procedure would amount to mere irregularity and not an illegality.