DWARIKA HALWAI Vs. SITLA PRASAD

JUDGEMENT

(1.) This is an appeal by Dwarka Halwai, defendant, originally an auction- purchaser, against a decree in favour of the plaintiff. The present decree of the trial Court is that the decree in O.S. No. 188 of 1924 dated 24 September 1924 of the Court of the Munsif, Syed Ali Akbar V/s. Sitla Prasad and others, is null and void and is not binding on the plaintiff and the plaintiff shall receive possession over the house in dispute. Syed Ali Akbar brought a suit, No. 16 of 1922, and obtained a decree on a promissory note against Maksudan Das. Syed Ali Akbar attached a house in Shahganj, district Jaunpur, in execution of this decree. Mt. Ram Pati, the wife of Maksudan Das, judgment-debtor, objected under Order 21, Rule 58, Civil P.C., that her mother Mt. Shiam Kunwar had built this house and that the house belonged to her on the death of her mother and that Maksudan Das had no interest in the house. Mt. Ram Pati then died and the present plaintiff Sitla Prasad, a minor, was substituted as the son adopted by Maksudan Das, her husband, and as the person who was entitled to succeed to the property of Mt. Ram Pati. The execution Court decided the objection in favour of Sitla Prasad.

(2.) Syed Ali Akbar then filed a suit, No. 188 of 1924, against Sitla Prasad minor for a decision that the house in question was the house of Maksudan Das. Syed Ali Akbar named Hanuman Prasad, the father of Maksudan Das, as the guardian ad litem of Sitla Prasad, but no notice was served on him and then Syed Ali Akbar applied to the Court for the appointment of B. Ganga Saran Vakil and the Court appointed B. Ganga Saran as the guardian ad litem of the minor defendant Sitla Prasad. We are also told that Syed Ali Akbar made a payment to B. Ganga Saran Vakil of the amount required for the defence of the minor. But no appearance was entered in the case by B. Ganga Saran Vakil on behalf of the minor and he did not contest the suit at all. Accordingly, the suit was decreed ex parte against the minor on 24 September 1934. Syed Ali Akbar then applied for attachment in execution of his decree in O.S. No. 16 of 1922. There was attachment and sale on 2 March, 1926 and the present appellant Dwarka Prasad purchased this house. Delivery of possession was granted to him on 3 May 1926. Some argument has been made to us that the plaintiff was entered as the legal representative of Maksudan Das in these execution proceedings and that in his present capacity as plaintiff in this suit those execution proceedings would be binding on him. One answer to this argument is that in the execution proceedings he was appointed to represent his father Muksudan Das and as legal representative of his father he did not represent himself in his personal capacity nor was he the legal representative of his deceased mother Mt. Ram Pati. In the present case the plaintiff claims this house as the property which he inherited from his mother. It is clear that his being entered in the execution proceedings as legal representative of his father can have no bearing on his right to claim property inherited by him from his mother. The Court below notes in regard to the argument of Maksudan Das being represented by Sitla Prasad: This point does not appear to have been pressed in the lower Court and there is nothing to show that Sitla Prasad was duly represented by a proper guardian in the execution proceedings and therefore the Court held that Section 11, Civil P.C., would not bar the present suit.

(3.) Various issues were raised before the Courts below and agreeing with the trial Court the lower Appellate Court has held: (1) the house belonged to Mt. Shiama Kunwar and after her death to Mt. Ram Pati and not to Muksudan Das; (2) the plaintiff is the adopted son of Maksudan Das and the heir to his wife Mt. Shiama Kunwar; (3) there was gross negligence of B. Ganga Saran Vakil guardian ad litem of the plaintiff; (4) the plaintiff was less than 21 years of age when the present suit was brought and therefore the suit is within limitation; (5) Section 41, T.P. Act, does not apply to auction sales as held in Puranmal V/s. Shiva Lal . Section 11 and Section 47, Civil P.C., do not apply.