ADIVI SURYAPRAKASA RAO Vs. TUMMALAPALLI SREERAMULU

JUDGEMENT

(1.) This appeal is against the decision of the Subordinate Judge of Narasapur in a suit for a declaration that the order in Execution Petition No. 827 of 1920 in the Additional District Munsif's Court of Bhimavaram and the proceedings consequent are not binding on the plaintiffs, and for other consequential reliefs.

(2.) The 1 plaintiff is the father of plaintiffs 2 to 5. The 1 defendant sued the plaintiffs for certain property with mesne profits in Original Suit No. 319 of 1917 on the file of the Additional District Munsif's Court, Bhimavaram, and got a decree for delivery with past mesne profits at Rs. 250 per annum and future mesne profits at the same rate. The decree was appealed against by the plaintiffs and the judgment of the Appeal Court in A. S. No. 147 of 1919, Temporary Sub-Court, Masuli-patam, is the final judgment in that suit. The Appear Court confirmed the decree for delivery and past mesne profits, but directed that future mesne profits should be determined in execution. The 1 defendant accordingly brought Execution Petition No. 827 of 1920, dated 20 October, 1920, for the purpose of determining future mesne profits. The 3 plaintiff who was a minor during the trial of the suit had then attained majority, but still remained on record as a minor; and he and plaintiffs 4 and 5, also minors, were represented in the execution petition by the 1 plaintiff, their father and guardian ad litem. He and 2nd plaintiff allowed the execution petition to be decreed ex. parte, and the order passed on the execution petition was that the 1 defendant do recover mesne profits at the rate of Rs. 857-8-0 per annum with interest at 12 per cent. per annum. Plaintiffs 3 to 5 here plead that this order is not binding on. them, because it was obtained owing to the gross negligence of their guardian ad litem in allowing the proceedings to be adjudged ex parte. Plaintiffs 1 and 2 contend that the decree in the execution petition was obtained by fraud and consequently is not binding upon them. They also maintain that, since it; is not binding on plaintiffs 3 to 5, it cannot be enforced against them, i.e., plaintiffs 1 and 2, either, all being members of one joint family. The Lower Court has held that the minors interests were grossly prejudiced by the negligence of the guardian and has given the declaration sought for in the plaint and has decided that a fresh inquiry should be held into the amount of future mesne profits. As regards plaintiffs 1 and 2, it has decided that the order in the execution petition is not binding upon them either. Defendants 1, 2, 6 and 7 appeal.

(3.) In the execution proceedings the plaintiffs appeared by a pleader and filed a counter, and the petition stood posted for hearing from 2nd May, 1921 to 22nd June, 1921. Between these two dates their pleader died. On the 22nd June, 1921, none of the plaintiffs appeared. Some one it is not clear who or on whose behalf asked for a week's adjournment and that was granted. On the 29 June, 1921, the plaintiffs again put in no appearance and the petition was ordered ex parte. The fraud alleged by the plaintiffs, set out at some length in paragraph 7 of the plaint, where it is not merely a plea of negligence on the part of plaintiffs 1 and 2, is merely to the effect that the 1 defendant took an unfair advantage of the fact of their pleader's death and the illness of plaintiffs 1 and 2 in order to obtain the ex parte order. No evidence of fraud is adduced and the plea has not been proved here. It is embodied in issue No. 1. The substantial point for determination is issue No. 2, "Whether the interest of the minors suffered from any gross negligence on the part of the guardian". That the guardian was grossly negligent is obvious. It is not very clear whether the guardian appeared in Court on 2nd May, 1921. The Subordinate Judge says he did appear, but the evidence of the 2nd plaintiff seems to indicate that he did not. If he did, he must have been aware personally of the adjourned date of hearing and ought to have: appeared then. If he did not, he was negligent in not appearing even on that date to instruct his pleader and to conduct the case. He did not appear on 22nd June, 1921 and merely pleads a vague illness of which there is no satisfactory proof. Obviously he was entirely negligent in the minors interest. This was also the finding of both the Courts which had to deal with an application by him to set aside the ex parte order. (Sec Exs. IV-a and IV-b.)