GULAB CHAND Vs. MTKISHORI KUER

JUDGEMENT

(1.) This is an appeal by three of the judgment-debtors in a mortgage suit against the concurrent orders of the lower Courts disallowing their objections to execution.

(2.) Mr. Kaj Kishore Prasad who appears for the appellants has contended, in the first place, that the final decree was a nullity because it was based on the preliminary decree as passed by the trial Court and not on the preliminary decree as modified by the Court of first appeal. This objection was not taken in the Courts below, and involves a question of fact. If, moreover, the final decree should follow the unmodified preliminary decree, would this be such an error of jurisdiction as to entitle the judgment-debtors to treat the decree as a nullity in execution proceedings? The Court which passed the final decree was completely in seisin of the case and had jurisdiction to pass a final decree. If it erred in basing the final decree on the original preliminary decree, though this had been modified in appeal, the error would be in the mode of exercise of jurisdiction properly assumed, and not in the assumption of a jurisdiction which did not belong to the Court. Such an error, though curable by appeal, would not make the decree a nullity; the decree would still be binding on the parties unless it was corrected or set aside in appropriate proceedings. The defect would arise not from a lack of inherent jurisdiction but would lie in a failure to proceed regularly, that is to say, on the basis of the modified (instead of the original) preliminary decree. But it is well settled that the mere irregularity of a decree cannot be questioned in execution proceedings. I would, therefore, overrule this objection.

(3.) It has been found that put of the three appellants, Gulabchand, Phoolchand and Tarachand, who were all minors at the time the suit was instituted, two, namely, Gulabchand, Phoolchand had attained majority before the final decree, but the final decree was nevertheless obtained against them as minors under the guardianship of their pleader guardian. The learned advocate also says that an appeal against the preliminary decree was preferred on behalf of all the defendants by one of them, Sonu Lai, who purported to act as guardian on behalf of the three minors in that appeal two of them being his sons and the third (Gulab Chand) a relative. There was a second appeal to this Court, in which again Sonu Lal acted not only on his own behalf but also as guardian of the three minors. Upon this, the objection taken below has been repeated that in the proceedings taken for the final decree, the three defendants should not have been represented as minors under the guardianship of the pleader who was originally appointed their guardian ad litem, but that the two defendants who had attained majority should have been proceeded against as majors and the third as a minor under the guardianship of Sonu Lal. But it does not appear whether Sonu Lal was formally allowed to act as guardian on behalf of the minors after discharging the pleader guardian who had been appointed by the trial Court; and, it is prima facie difficult to assert that the interests of a Mitakshara father are not adverse to those of his minor sons in a suit on, mortgage executed by him, and a fortiori to those of a minor relative as was Gulab chand. Be that as it may, it is not pretended that when the proceedings for the final decree were taken against them as minors under the guardianship of the pleader who had been originally appointed to act in that capacity, Sonu Lal or anybody else (including the two defendants who had attained majority) raised any objection. The appointment of the pleader guardian would, unless terminated earlier by some order of the Court, continue to be in force under Sub-rule (5) of Order 32, Rule 3, Civil P.C., for appellate and execution proceedings. Appellants have, therefore, failed definitely to establish that there was any irregularity or to make out any reason for supposing that any prejudice resulted to any of them from the continuance of the pleader guardian. Mr. Raj Kishore Prasad cited Baraik Ram V/s. Chowra Uraon A.I.R. 1938 Pat. 97, which, however, is of 3 little assistance to the appellants, being merely a case in which notices were served on certain minors through their mothers as guardians but the mothers were neither appointed guardians nor shown to have consented to act as such or to have done anything in that capacity. In the present case the minors were all beyond doubt properly represented in the beginning by the pleader guardian. The decree-holder had little to do with their representation by Sonu Lal in the appeals, nor is any grievance made of such representation. So far as the attack on the regularity of the proceedings is based on the fact that at the time of the final decree two of them had attained majority, they did not come forward to say to the Court that they would prefer to look after their own interests and that the pleader guardian should, therefore, be removed. In Ratan Prasad v. Bridhi Chand A.I.R. 1939 Pat. 601 and two later oases from Rajendra Prasad v. Debi Prasad A.I.R. 1940 Pat. 303 and Sheorani Kori V/s. Kamakshya Narain Singh 21 P.L.T. 269, referred to by the learned advocate, it was held by more than one Bench of this Court that in such circumstances the decree cannot be regarded as a nullity merely because the parties continued to be shown as minors, and I see no reason whatsoever to doubt the correctness of this view. The representation of the youngest minor by the pleader guardian provides manifestly less reason for treating the final decree as a nullity. The result is that the appeal fails. I would dismiss it with costs. Harries, C.J. I agree.