PROBHAT KUMAR CHATTERJEE Vs. LATIKA DEBI

JUDGEMENT

(1.) This appeal is directed against an order of the learned Subordinate Judge, 24-Parganas, dismissing an application under Order 9, Rule 13, Civil P. C. Ths application was filed by two persons, Provat Kumar Chatterji and Krishna Kumar Chatterji, both minors. The decree which was sought to be set aside was passed in a suit brought by their father's brother's widow Latika Debi for partition, for return of certain ornaments and for accounts as a pauper. Both Krishna and Provat were impleaded in that suit as major persons and so there was no arrangement, for their representation through any guardian. The learned Subordinate Judge gave as the main reason of dismissing the application under Order 9, Rule 13 of the Code of Civil Procedure his conclusion being that in law these two petitioners could not be regarded as parties to the suit and consequently the decree was a nullity.

(2.) It has been contended before us that when the parties were, in fact, impleaded as defendants, the omission to describe them as minor did not affect the fact that they were defendants and that there was really a duty en Court to arrange for their representation.

(3.) Whatever might have been said on this question, if it was 'res integra', I am of opinion that we are compelled by the authority of the decision of the Judicial Committee in the case of Mt. Rashid-un-nisa v. Muhammad Is Mail Khan', 36 Ind App 168 (P.C.) to hold that the two petitioners who, though in fact minors, were described as major and so were not legally represented in Court, were not, in any proper sense, parties to the litigation and consequently the application by them under Order 9, Rule 13, Civil P. C., is not maintainable. In that case, a suit was brought by a minor for a declaration that two decrees and three sales in execution affecting her share in her father's estate were invalid as against her as not properly represented in the proceedings 'from which they resulted. There the plaintiff had been described as a minor but the person who was appointed as guardian was disqualified by the provisions of the Civil Procedure Code from such appointment. The Subordinate Judge passed a decree in the suit. The High Court in appeal set aside his decree and dismissed the suit upon the ground that the decrees upon which those execution proceedings were founded were not in any way impeached in the suit nor could they be. The impeached transactions were proceedings in execution of those decrees, and this being so it was the proper course for the plaintiff, if she had any objection to make to the execution of the decrees, to raise these objections under the provisions of s. 244, Civil P. C. and not by a separate suit. This decision, was overruled by the Privy Council and their Lordships of the Privy Council dealt with matter in these words: