SADHO SAHU Vs. SARDA PATHAK

JUDGEMENT

(1.) The actual point of substance which was raised by the respondents in this appeal was not taken in the Court below in the form in which it was put forward before me. The substance of the point is that Order 32, Rule 3, Sub-rule (4) was not complied with inasmuch as notice to the minor and to the guardian of the minor appointed by the Court was not served upon those persons. The substance, however, of the decision of the Court below was that the proceedings themselves had not been served on a properly constituted guardian; in other words, there was no guardian representing the minor in the former action and who is the plaintiff in this action. Shortly the facts out of which this question arises were these: Sadho Sahu, defendant 1, had undertaken to pay a sum of Rs. 275 to Girdhar Pathak.

(2.) This Rs. 275 was left with defendant 1 as the mortgagee to pay it on behalf of defendant 3. An action was ultimately brought by defendant 3 for a declaration that the sum of Rs. 275 had not been paid by defendant 1 to Girdhar Pathak. This action succeeded. Defendant 1 then having this decree against him brought an action against Girdhar's representatives to claim back the sum which he said he had in fact paid in spite of the decision of the Court to which I have just referred. Now this action by defendant 1 was decreed ex parte. Girdhar had died and the action was brought against Kamla Pathak and his minor brother as persons being in possession of the assets of Girdhar Pathak.

(3.) It is as a result of this suit that the action out of which this appeal arises was brought. The substance of the claim was that the action by defendant 1 against Kamla Pathak and his minor brother was fraudulent. It is clear however in spite of what the Subordinate Judge in the Court below has said that there was no fraud. I am surprised at the criticism which the learned Subordinate Judge as the Judge of appeal in this case has uttered against the Judge trying the suit in which the ex parte decree was obtained. He makes a statement which is difficult to understand. He states that: In this case there is a singular abuse on the part of the Court to decree the suit ex parte against the minor appellant. The order sheet does not show that when the guardian ad litem had filed his nominal written statement, the Court ever cared to look into it.