SHAMBHU Vs. KANHAYA

JUDGEMENT

(1.) THE point that arises in this appeal is fully covered by authority. THE suit was brought by a mortgagee on the foot of a mortgage to recover the loan. It was instituted against the mortgagor who executed the mortgage and his minor son. After attempts had been made by the plaintiff to get various persons appointed guardian ad litem to the minor, the Nazir of the Court was ultimately appointed. THE suit was heard, evidence was given and it was ultimately decreed in favour of the plaintiff against both the father and the son. THEreafter an appeal was presented to the District Judge by one Bhagwanji on behalf of the minor. He was not the guardian ad litem and had never applied to be made guardian. On the appeal coming before him, the learned District Judge refused to hear it on the ground that there was no valid appeal before him. He held that the Nazir having been appointed guardian ad litem his authority must be held to continue as long as the lis continued and that until he had been removed from the guardianship by the Court, he and he only was competent to file an appeal,. He, therefore, dismissed the appeal. It is from this decree dismissing the appeal that this second appeal was brought, and it is urged that the authority of the Nazir ended with the decree of the First Court and that thereafter it was open to the minor defendant to appeal through his next friend. In Jwala Dei V/s. Pirbhu 14 A. 35 : A.W.N. (1891) 192 : 7 Ind. Dec. (N.S.) 394, a Bench of this Court decided that where a guardian ad litem has once been appointed, his appointment enures for the whole of the lis in the course of which it was made, unless and until it was revoked by the Court. In Venkata Chandrasekhara Raz V/s. Alakarajamba Maharani 22 M. 187 : 8 Ind. Dec. (N.S.) 133, the same proposition was laid down. That case was followed by a Divisional Bench of this Court in Bawan Das V/s. Bishnath A.W.N. (1899) 203. THEse three cases were referred to and followed by a Single Judge of this Court in In the matter of the application of Sukhdeo Rai 2 A.L.J. 489. We see no reason to differ from this consistent authority. Our attention has been called, to Bhagwan Dayal v. Param Sukh Das 36 Ind. Cas. 366 : 39 A. 8 : 14 A.L.J. 818. In that case, however, this point did not arise and was not considered. THE result is that the appeal fails and is dismissed with costs.