MT PHOOL KUER Vs. REWARI SINGH

JUDGEMENT

(1.) This is a first appeal by the defendants from an order of remand by the lower appellate Court. The plaintiffs sued for redemption of a usufructuary mortgage and mesne profits and the Court of first instance decreed redemption but dismissed the suit for mesne profits. The lower appellate Court has granted the claim for mesne profits and remanded the case to the Court of first instance for the determination of the amount of damages payable to the plaintiffs from Jait 1925 to Jait 1928. It was pointed out by the learned counsel for the appellants that in any case the claim for those three years, i.e., up to Jait 1928, is in excess of the claim in the plaint. The plaint was filed on 25 May 1927 and the claim for mesne profits therefore would only be put to Jait 1927 and not up to Jait 1928.

(2.) The main question before us is whether the plaintiff is entitled to mesne profits in view of the fact that when the plaintiff made his deposit under Section 83, T.P. Act, no formal order was passed appointing guardians for three minor defendants. The order sheet shows that the plaintiff did apply for the appointment of guardians and notices were issued to the mothers of these minor defendants to show cause why they should not be appointed guardians. At the same time that notice issued, another notice also issued addressed to the mothers as guardians under Section 83, T.P. Act, to withdraw the deposit and hand over possession of the property. The notices on the mothers were not served and eventually the Court ordered service by proclamation. The service by proclamation was made but no formal order was recorded appointing the mothers as guardians.

(3.) We consider that it is not correct to order substituted service on a person to show cause why he should not be appointed guardian. In fact, under a more recent rule of this Court, it is now provided in Order 32, Rule 4-A (3) that refusal to accept notice shall be presumed to be refusal to act as guardian. Accordingly, when summons was returned unserved, the plaintiff should have applied for other persons to be appointed guardian. It is always open to a plaintiff to ask the Court to appoint an officer of the Court or a vakil of the Court to act as guardian and pay the necessary fees.