PRADEEP SAHU Vs. BANSHIDHAR SAHU AND ORS.

JUDGEMENT

(1.) The present Second Appeal arises out of a suit filed by the present appellant Pradip Kumar Sahu, then a minor, through his uncle as guardian and next friend for declaration that the preliminary decree and the final decree for foreclosure passed in O.S. No. 92/67-11 and the consequential execution proceedings are illegal and void, that the mortgage dues have been satisfied, for a preliminary decree for redemption and for delivery of possession.

(2.) The present proceeding has a chequered career and the sequence of events is very significant. The important and material facts leading to the present appeal are stated below :

(3.) Mr. U.K. Samal appearing on behalf of the appellant has referred to the provisions of Order 32,. Rule 3-A, sub-rule (2) of the Civil Procedure Code and has submitted that minor is entitled to succeed in his suit upon establishing that the guardian-ad-litem had acted with gross negligence. He has also referred to several decisions. He has cited a decision reported in Kamakshya Narain Singh Bhadur Vs. Baldeo Sahai and others AIR 1950 Pat. 97 and has argued that a minor is not bound by any decision in a proceeding in which he was not effectively represented and gross negligence on the part of his guardian entitles a minor to obtain avoidance of the proceedings undertaken on his behalf. He has also relied on the decision of the Supreme Court reported in Dhirendra Kumar Garg and others Vs. Smt. Sugandhi Rai Jain and others, AIR.19S9 SC 147. in support of his submission that failure to protect the minor's interest is itself a gross negligence on the part of the guardian. He has further submitted that the order-sheet of the foreclosure suit which has been exhibited in the suit clearly shows that the guardian-ad-litem did not appear in the proceedings for final decree and that itself amounted to gross negligence on his part in protecting the interest of the minor. He has pointed out that the first appellate court failed to appreciate that it is not necessary to show that the guardian has committed any misconduct and if it is established that the guardian acted with gross negligence, the minor is entitled to avoid the decree. He has also drawn the attention to Sec. 6 of the Limitation Act and has submitted that the first appellate court committed error in. holding that the suit was barred by limitation".