RAJA BABU Vs. BALMUKUND

JUDGEMENT

(1.) This appeal arises out of a suit by the plaintiffs respondents to set aside an ex parte decree passed against them as minors under the guardianship of their father Beni Madho, on the ground that their father was improperly appointed as their guardian in the previous suit, that they were not liable for the debt, and that the decree is not binding on them. The father was himself a defendant in the previous suit, and was also impleaded as guardian of his sons. The two questions which arise in a case of this kind were laid down in Chatter Singh V/s. Tej Singh A.I.R. 1921 All. 393. They are- 1. Whether the guardian was irregularly appointed?

(2.) Whether the minors have been prejudiced? 2. Both these questions have been answered by the Courts below in favour of the plaintiffs. There may be some doubt as to the proper answer to the first question but the defendant-appellant is undoubtedly entitled to succeed on the second.

(3.) The suit was brought on two hundies. Notice was issued to Beni Madho, father of the plaintiff to state whether he had any objection to being appointed guardian. This is the ordinary form in which notices for the appointment of a guardian are issued by this Court. (See Form No. H.C.J. Part I, 18. Order 442, H.C. 1921). The notice was served by affixation on his house under Order 5, Rule 17, but was held by the Court trying the case to have been duly served. He did not appear or make any objection and he was appointed guardian ad litem under Order 32, Rule 3, on 3 April, 1917. A week later Beni Madho appeared, stated that he had not received the notice in time and objected to being appointed guardian. The Court held that as he had already been appointed he could not retire without leave of the Court under Rule 11 or without procuring some one to take his place under Rule 8. As he had not offered to pay the cost of appointing a successor, and as in the opinion of the Court no sufficient reason for allowing him to withdraw was made out, the Court refused to allow him to retire.