JOGESHWAR NARAIN SINGH Vs. ROY RADHA RAMAN

JUDGEMENT

(1.) This Appeal is directed against an order by which the Court below has dismissed what purports to be an application under Rule 90 of Order XXI of the Code of 1908, for reversal of an execution sale, It appears that a mortgage decree was obtained against the appellant by the respondents on the 30th June 1903. The decree was subsequently affirmed by this Court on the 13th July 1905. Execution was taken out in due course upon application made on the 15th April 1907 and the sale took place on the 29th March 1908. On the 27th April following, an application for reversal of this sale was made on behalf of the present appellant, who was at the time an infant, represented by his mother as his guardian ad litem. The application was refused by the Court of first instance on the12th September 1908, and the order of dismissal was affirmed by this Court in appeal on the 18th December 1908. The appellant, it is conceded, attained majority on the 6th September 1909, and, on the 3rd May 1910, he presented the application whereby these proceedings were initiated. In this application, he alleges that the proceedings for reversal of the sale were not properly conducted on his behalf by his mother and he asserts that he is not bound by the result thereof; he, therefore claims to file the present petition and seeks to have the sale cancelled. The Court below has refused the application as not maintainable in law. This order is now assailed before us on the ground that the application is maintainable and that if it is not, it should be converted into a plaint in a suit for declaration that the proceedings for reversal of the sale were not properly conducted by the mother of the appellant; and the ultimate order doss not bind him. In our opinion, there is no room for controversy that the application as framed cannot be entertained.

(2.) It is well settled, as stated in the Laws of England, edited by Lord Halsbury, Vol. XVII, Section 316, that an infant plaintiff is as much bound as an adult by a judgment or order in the cause, even though there may have been irregularities in the conduct of it, unless there has been fraud or gross negligence on the part of his next friend. But, in special circumstances, he may be allowed, on coming of age, to amend his claim or to bring a fresh action. In support of this statement of the law, reference may be made to the cases of Brook v. Hertford 2 P. Wms. 518; Gregory v. Molesworth 3 Atk. 626 and Wall v. Bushby 1 Bro. C.C. 484 which show that an infant is bound by a judgment in his suit till it has been set aside in a proper proceeding. See also Richmond v. Tayleur 1 P. Wms. 734 at p. 737; Trefusis v. Cotton Moosley 203; Carew v. Johnston 2 Sch. And Lef. 280 at p. 292. If the proceeding has been vitiated by fraud, as in the case of Colclough v. Bolger 4 Dow. 54 at p. 62 : 3 Eng. Rep. 1087 : 16 R.R. 24 or by gross negligence as in the case of In re Hoghton; Hoghton v. Fidday L.R. 18 Eq. 573 : 43 L.J. Ch. 758 : 22 W.R. 854 the remedy of the infant is either by an application for review or by a separate suit to set aside the judgment. This view has been repeatedly taken in the Courts of this country. In so far as this Court is concerned, reference may be made td the cases of Debi Dutt v. Subodra Bibee 2 C. 283 : 25 W.R. 449; Eshan Chundra Safooi v. Nundamoni Dassee 10 C. 357; Lalla Sheo Churn Lal v. Ram Nandan Dobey 22 C. 8 at p. 9 and Rakhal Moni Dassi v. Adwyta Prosad Roy 30 C. 613 : 7 C.W.N. 419. The same view has been adopted in Madras in the case of Arunachallam v. Murugappa 12 M. 503 and in Bombay in the cases of Karmali v. Rahimbhoy 13 B. 137 and Virupakshappa v. Shidappa 23 B. 620 : 1 Bom. L.R. 82 See also Daulat Singh v. Raghubir Singh A.W.N. (1894) 141. It may not be possible to make an exhaustive enumeration of the circumstances in which an application for review furnishes the appropriate remedy or of others in which a regular suit brings adequate relief to the infant. But this much is clear that an application for review of judgment is appropriate generally, where it is possible that by a reconsideration of the judgment the rights of the minor which were lost by the fraud or negligence of the guardian, can be restored. Where, on the other band, as Sir Richard Girth, C.J., says in the case of Debi Dutt v. Subodra 2 C. 283 : 25 W.R. 449 the object of the plaintiff is to unrip a transaction which formed no part of the proceeding in the former suit and which had nothing whatever to do with that suit, it is obvious that an application for the review of the proceedings in that suit would be utterly ineffectual. In the case before us, if the allegations of the appellant are well founded in fact, he seeks relief on the ground of gross negligence, if not fraud, on the part of his guardian ad litem; that is, a fraud independent Of and distinct from the fraud which is said to vitiate the execution sale. In the present case, therefore, an application for review would not be the proper remedy; there are no materials on the record upon which the question of fraud or negligence imputed to the guardian can be determined. But there is an additional difficulty here in the way of an application for review by the appellant. The order of the Court of first instance, as already stated, was affirmed by this Court. If the appellant has recourse to an application for review, it must be an application to this Court to review its judgment. Upon such an application, allegations of fraud and gross negligence cannot properly be investigated. This, therefore, is a case where the remedy of the appellant, if he has any remedy, is by way of a regular suit, as indicated by the decisions in Lala Sheo Charan Lal v. Ram Nundan 22 C. 8 at p. 9 and Parmeswari Pershad Narain Singh v. Sheo Dutt Rai 6 C.L.J. 448. The view taken by the Court below that the application as framed is not maintainable must, consequently, be affirmed.

(3.) The learned Vakil for the appellant has finally asked for leave under Section 47, Sub- Section (2) of the Code of 1908 to treat the application as the plaint in a suit wherein the order in the previous proceeding may be impeached. We are of opinion that this is a case where leave should be granted, but only on terms. The appellant must pay the respondents their costs here and below, within six weeks of the arrival of the record in the lower Court. If the costs are so paid, this appeal will stand decreed, the order of the Court below discharged, and the case remitted to the lower Court so that the application may be treated as the plaint in a regular suit. The petitioner will pay full Court-fees thereon under the direction of the Subordinate Judge within such time as may be allowed; he will also be at liberty to amend the plaint. The defendants will then file their written statement and the suit will be tried out on the merits in due course. If the costs are not paid as directed, this appeal will stand dismissed with costs. We assess the hearing fee at three gold mohurs.