VAIDYANATH SAHAY Vs. RAMBADAN SINGH

JUDGEMENT

(1.) This plaintiff's second appeal arises out of a suit for declaration that a decree passed in small cause court suit No. 406/380 of 1940 in the court of the Munsif IV at Chapra on the 6th of September, 1940, and the auction sale of the suit property held in execution of that decree on the 8th January, 1942, in the court of the Munsif 1 at Chapra, were void. He asked for recovery of possession over holding Nos. 170 and 171 (old) corresponding to new holding Nos. 176 and 177. His case was that he was born on the 2nd January, 1930. While he was a minor, his father died in 1938. His mother also died in 1945. The small cause court suit was brought after the death of his father against the plaintiff for recovery of money on the basis of a promissory note allegedly executed by his father in favour of the present defendant 1. No summonses of that suit were served upon the plaintiff or his natural guardian and no notice as contemplated under Order 32, Civil Procedure Code, in connection with the appointment of a guardian for a minor defendant was served either on the plaintiff or his natural guardian, his mother; and the pleader guardian who was appointed for him in that suit did not defend the minor and the result was that an ex parte decree was passed. The notices in the execution case following that ex parte decree were also suppressed; and the suit property was sold to the decree-holder at an inadequate price by the court. He alleged that on the death of his father, he and his mother left the town of Chapra and were living at their village home at Baranpura. He, however, came to know of the ex parte decree and the auction sale on the 25th April, 1948, and filed the present suit on the 19th December, 1950, which was, according to him, within three years of his attaining majority.

(2.) The suit was contested by the defendants, defendant 2 being a transferee from defendant 1 for a portion of the suit property, alleging that the plaintiff-minor was properly represented in the suit; and there was no suppression of the summonses or notices either in the suit or in the execution case. The bar of limitation was also raised in defence against the plaintiff's suit.

(3.) The Courts below dismissed the suit on a finding that the suit was barred by limitation, and that all the notices were served upon the plaintiff, and his natural guardian, his mother before a pleader guardian was appointed. The decree passed in the small cause court suit was held to be correct as the debt on which it was based, was existing against the plaintiff.