MISRI SAHU Vs. VISHU NATH SAHU

JUDGEMENT

(1.) THIS is an appeal on behalf of the plaintiff in a suit to enforce a mortgage security alleged to have been executed by the defendant in his favour on the 14th May 1907. The suit was commenced on the 15th June 1908. Amongst other defences the defendant urged that he was an infant at the time when the transaction took place. The Court found upon the evidence that the defendant was born on the 17th August 1892 and that a guardian of his person and property had been appointed under the Guardians and Wards Act so that the defendant could not attain majority till the 17th August 1913. Notwithstanding this finding, the Court heard the case on the merits and made a decree against the defendant though he was not represented by a guardian ad litem. The defendant appealed to the District Judge and although according to his own contention which had been accepted as well-founded by the original Court he was an infant, he preferred the appeal himself as if he was sui juris. No objection was taken by the plaintiff-respondent that the appeal was not properly constituted; on the other hand the plaintiff attacked the finding at the primary Court as to the date of birth of the defendant. Upon that point his contention failed and the District Judge affirmed the finding of the first Court. The District Judge then proceeded to hold that the suit was improperly constituted because the defendant, an infant, was not represented by a guardian ad litem; but he held that he had no authority to remand the case under Rule 23 of Order XLI of the Code of 1908, inasmuch as the suit had not been decided in the Court of first instance upon a preliminary point. The Judge thereupon allowed the appeal and dismissed the suit.

(2.) THE plaintiff has now appealed to this Court and on his behalf it has been con-tended, that the appeal before the District Judge was incompetent because it had been preferred by an infant not represented by a guardian ad litem. THE learned Vakil for the appellant has, however, conceded that if his contention is well-founded, the present appeal must also be treated as incompetent because he has not taken any steps to have the respondent represented by a guardian for the purposes of his appeal, though according to the concurrent findings of the Courts below the defendant-respondent is still an infant. Under these circumstances we have to exercise our powers under Section 151 of the Code and to make such order as is necessary for the ends of justice. It is clear, in our opinion, that the learned Judge took a restricted view of his powers as a Court of Appeal. No doubt it has been held by this Court in the case of Abdul Karim v. Fayez Buksh 9 Ind. Cas. 224 : 15 C.W.N. 575 that a Court of Appeal is competent to make an order of remand only when the conditions mentioned in Rule 23, Order XLI, are fulfilled. ,We are, however, not prepared to accept that view as sound. Section 664 of the Code of 1882, which restricted the powers of an Appellate Court to remand a case, is not reproduced in the Code of 1908 and as already explained by this Court in the case of Tohra Bibi v. Zabeda Khatoon 7 Ind. Cas. 75 : 12 C.L.J. 368, it is competent to a Court of Appeal to remand a case under circumstances not mentioned in Rule 23 of Order XLI where the ends of justice require that the case should be retried. In the case before us the proceedings have been throughout irregular, and the only course which the Court can possibly pursue is to discharge the decrees of both the Courts below and to remand the case to the Court of first instance. THE plaintiff will be at liberty to take steps for the appointment of a guardian ad litem for the defendant. When he has done so, the suit will be tried out on the merits. THEre will be no order for costs as the respondent is not represented before us.