SARAT CHANDRA Vs. PRABASHI

JUDGEMENT

(1.) This is an appeal under the Orissa High Court Order, against the judgment dated 16-12-1949 in S. A. 113 of 1949, of our learned brother Das, J., (as he then was) declaring the title of plaintiffs No. 2 (Kinu Charan Padhan) to a moiety of the properties in suit and dismissing the claim of plaintiff No. 1 (Durga Charan Das) to the properties.

(2.) The facts giving rise to the litigation ape briefly these. The defendant (who is the appellant before us) was the landlord of a holding measuring .072 of an acre, of which plaintiff No. 1, Durgacharan, and Baidyanath, the father of plaintiff No. 2, were the recorded tenants. In Rent Suit No. 5676 of 1933-34, he obtained a decree for arrears of rent against plaintiff No. 1, and Baidyanath. In execution of that decree the holding was put up for sale, was purchased on 27- 11-1936 by the decree-holder, and delivery of possession was taken, through Court, on 29-7-1937. Five years later the' present suit was raised by Durgacharan and Kinu Charan Padhan (plaintiff No. 2) the minor son of Baidyanath, who had died in the meanwhile, and plaintiff No. 3, Pari Bewa, widow of one Banamali Padhan who claimed some interest in the suit property. The case set out in the plaint is that Baidyanath, father of plaintiff No. 2 died soon after the passing of the rent decree and that his minor son, plaintiff No. 2, was not adequately represented in the execution proceedings. There were a number of other allegations such as fraudulent suppression of notices and irregularity in the conduct of the sale, etc., but these were found against the plaintiffs by all the Courts. It was also found that plaintiff No. 3 had no interest in the suit property. The only point that is material for the decision of this appeal is whether plaintiff No. 2 who was admittedly a minor during execution, was adequately represented in the execution proceedings by his mother as his guardian.

(3.) It has been found by the Courts of fact that the notice under Order 21, Rule 22, C.P.C., was issued and was actually served on plaintiff No. 1 as well as upon the plaintiff No. 2, and was also tendered to the mother of the latter. It has further been found that notices of attachment and proclamation were duly, served. The learned Munsiff who tried the suit, as well as the learned District Judge who heard the appeal, have both held that the minor was adequately represented in the execution proceedings as he himself received the notices and his mother was aware of the proceedings going on against him. In this view they directed the dismissal of the plaintiff's suit in its entirety.