PYARE LAL Vs. RAMCHANDRA

JUDGEMENT

(1.) PYARELAL, who was originally defendant No. 16 in the suit has lodged this revision application against the order of the Munsif, Bilara, dated May 18, 1976 by which, issue No. 7 was decided against him. The plaintiffs-non-petitioners No. 1 and 2 instituted a suit for redemption of house situate at Pipar City, in the Court of Munsif, Bilara on January 24, 1969. The redemption was sought on the basis of the registered mortgage-deed dated June 23,1922. The suit for redemption was filed originally against 16 defendants. It was averred in para 3 of the plaint that the house in question was mortgaged with Jamnadass and Mohanlal, who had died and their legal representatives (heirs) are defendants Nos. 1 to 13. The mortgagee rights were transferred to defendants Nos. 14 and 15. Defendant No. 16 (petitioner) is said to be in possession of the mortgaged house on behalf of defendants No. 14 and 15. It is also stated in para 3 of the plaint that the original mortgagor, Mohanlal has also died and his heirs are plaintiffs-non-petitioners No. 1 and 2 and as such are entitled to redeem the house in question. In para 4, it was alleged that the plaintiffs asked the defendants for redemption of the house after accepting the mortgage amount of Rs. 1350/- and a fixed sum of Rs. 100/- on account of repairs, total Rs. 1450/-and to deliver the documents and possession. A notice was also given but with no result. Hence, the suit for redemption was instituted. The suit proceeded exparte against all the defendants and ultimately exparte decree for redemption was passed on March 28, 1972. The material portion of the decree for the disposal of this revision is as under: *** An application was moved by the petitioner for setting aside the ex parte decree on April 25, 1972. The application was dismissed on December 23, 1972. Being dis-satisfied with the dismissal of the application for setting aside the ex parte decree, the petitioner preferred an appeal and the learned Additional District Judge, No. 2, Jodhpur, by his judgment dated May 6, 1974 accepted the appeal and set aside the ex parte decree dated March 28, 1972. It will be relevant here to quote the operative part of the appellate judgment: " The result is that the appeal is allowed and order of the Munsif, Bilara, dated December 23, 1972 and as a consequence thereof, the ex parte decree passed by him in Suit No. 11 of 1969 is also set aside and the appellant is allowed to contest the suit afresh, as if no decree had been passed against him in that suit. " Thereafter, defendant No. 16 (petitioner) filed the written statement on September 9, 1976. Issues were framed on October 14,1974. Issue No. 1 is to the effect whether the plaintiffs' ancestor, deceased Mohanlal had mortgaged the house in dispute on Asad-sudi-13, Samvat 1978 i. e. March 23, 1922 with deceased Jamnadass and Mohanlal by a registered mortgage-deed and if. it is so whether the plaintiffs are entitled to obtain the possession from defendant No. 16 PYARELAL. On March 9, 1976, additional issue No. 7 was framed, which when translated into english, read as under: " Whether the suit cannot proceed without appointment of Guardian-ad-litem for defendants No. 4 and 8. "

(2.) THE learned Munsif, after hearing the arguments on this issue decided it, in favour of the plaintiffs and against defendant No. 16. Aggrieved by this order dated May 18, 1976, defendant No. 16 Pyarelal has come in revision as aforesaid.

(3.) IN these circumstances, the learned Munsif has exercised his jurisdiction with material irregularity, when he held that ex-parte decree still subsists against minor defendants Nos. 4 and 8, and therefore, it is not necessary to appoint guardian-ad-litem for them. The decision of the learned Munsif, in respect of issue No. 7 has, thus, to be reversed. It is, accordingly, decided against the plaintiffs and it is held that further proceedings in the suit cannot be taken against minor defendants No. 4 and 8 without appointment of guardian-ad-litem.