GESTA GOPAL DAY Vs. BHOLANATH DAS AND ORS.

JUDGEMENT

(1.) THE Petitioner (decree -holder No. 1) and the late father opp. parties 2 and 3 (decree -holders 2 and 3) were brothers. They filed S. C. C. Suit 33 of 64 in the Court of the Sub -Judge, Baripada, against opp. party No. 1 for arrears of house rent, and obtained a decree for Rs. 574.21 ps. on 14.9 -1964. All the decree -holders filed Execution Case No. 60 of 64 for recovery of the decretal amount. In the suit and in the execution case the Petitioner acted as the next friend of opp. party.3, who was then a minor. On 7 -1 -1965 the judgment -debtor (opp. party. 1) paid a sum of Rs. 50/ - in Court which was received on behalf of all the decree -holders by Sri S.C. Das Patnaik, advocate for the decree -holders. On 15 -1.1965 the judgment -debtor filed a receipt for Rs. 538.56ps. signed by opp party no, 2 for self and as guardian of opp. party No. 3, and applied for recording full satisfaction of the decree. Sri S.N. Panda, advocate, appeared for opp. parties 2 and 3 on that day without taking the consent of Sarbashri S.C. Das Patnaik and J.K. Das, the original advocates for the decree -holders. The case of the Petitioner is that when Sri J.K. Das was in the midst of a criminal case, two pleaders' lerks, Baishnab Charan Das and Ramachandra Das, delivered to Sri J.K. Das three papers and took his signatures thereon. When Sri J.K. Das was free from the criminal Court, he read the papers and hurried to the Court of the Sub -Judge to take time for filing counter. It was then 3 P.M. and the Subordinate Judge had just passed orders recording full satisfaction. Next day on 16 -1 -1965, the Petitioner filed an application to recall the Order passed on the previous day. On issue of notice, the judgment -debtor alone appeared and filed a court. On 10 -2 -1965 the Subordinate Judge dismissed the application for recalling the order of fun satisfaction. Against this Order the civil revision has been filed.

(2.) THE learned Subordinate Judge's Order has been subjected to severe criticism from various aspects by Mr. Panda. Apart from other objections which would be point d out now, the order is contrary to law and it; not sustainable on the very face of it.

(3.) OPP . party. 3 Krushna Kumari was a minor. In the suit and in the execution she was represented through the Petitioner as next friend. At the time when the receipt of satisfaction was filed, opp. party -2 appeared as the guardian of opp. party -3. There was no application before the Court for discharging the Petitioner and for appointing opp. party -2 as the new next friend. Order XXXII, Rule 8, Code of Civil Procedure was infringed. This rule runs thus: