SHAMBHU MAHTO Vs. MIDNAPUR ZEMINDARI CO LTD

JUDGEMENT

(1.) This appeal is preferred by four minor plaintiffs whose suit to set aside an ex parte decree and a consequent sale of their property in execution has been dismissed by the Subordinate Judge of Midnapur, confirming the decree of the Munsif. On 23rd December 1904, the Midnapur Zemindari Company Ltd., (defendant No. 1 in this case) obtained an ex parte decree for Rs. 5-14 as. 18 gandas rent alleged to be due from the defendants. The defendants were the first three plaintiffs in the present suit and their co-sharers Sridhar Mahato, Hari Charan Mahato and Arun Mahato. The first three plaintiffs are sons of Nemai Mahato, a brother of Sridhar, and Sridhar was the guardian ad litem proposed by the plaintiff Company. No order appears to have been made appointing him guardian nor was his consent ever obtained to such appointment. On 12th December 1904, the defendants were absent and the case was on the plaintiff Company s petition adjourned to 23rd December for ex parte trial, when the decree was passed as above stated. In execution, the holding was put up for sale and bought by the plaintiff Company for Rs. 200, the real value being about Rs. 1,000. Some time later in 1906, Sridhar Mahato, purporting to act on behalf of himself and his three minor nephews, applied under Section 108 of the Civil Procedure Code, 1882, to set aside the ex parte decree. That application was dismissed on 3rd September 1908 as barred by limitation. He also applied under Sections 244 and 311 to set aside the sale on the ground of fraud and irregularity. That matter was carried up to this Court on appeal but the appeal failed and was dismissed on 1st April 1908.

(2.) On 3rd March 1909, the present suit was filed, Rajendra Mahato acting as next friend of plaintiffs Nos. 1-3 and Dhira Mahato as next friend of her son, Brojopati.

(3.) As regards this last plaintiff, the learned Pleader, who appears for all the plaintiffs, concedes that the original decree having been made against his father, Arun Mahato, he cannot succeed in these proceedings. His appeal fails and is dismissed, but we make no order for costs against him.