KHAJEH SALALUDDIN Vs. MTAFZAL BEGUM

JUDGEMENT

(1.) On the 24 February, 1909 one Mt. Jahura Begum obtained a decree for Rs. 25,000 and costs against her two minor children and her minor step-son. On the 8 October, 1920 an application was made to this Court on the Original Side for an order that the certified copy of this decree together with a certificate of non satisfaction be transmitted to the Court of the District Judge of Dacca for execution. This application was made by one Afzal Begum who alleged that she was the assignee of the decree. On the 7 May 1920 the Master on the Original side of this Court transferred the decree to the Dacca Court for execution. With the copy of the decree was forwarded a certificate signed by a Judge of this Court under Order XXI, Rule 6. The District Judge of Dacca transferred the execution case to the Subordinate Judge, 1 Court. On the 2 December, 1921 an application for execution of this decree was filed in that Court and that is execution case No. 120 of 1920. In that application three judgment-debtors were named and were described as represented by H. C. F. Meyer, Manager, Court of Wards, Dacca. The Court of Wards manager objected to the execution of the decree and his objection was dealt with as Miscellaneous Case 42 of 1921. The execution was kept pending until the disposal of the miscellaneous case. But in the end the assignee of the decree-holder allowed the execution case to be dismissed on the allegation that there was some mistake in the application for execution. On that execution case being dismissed the miscellaneous case was also dismissed. Then on the 2nd December, 1921 a second application for execution was made and in this application the minors were described as "being represented by Babu Anil Nath Basu, vakil, High Court who has been appointed guardian ad litem by the High Court." This gentleman is a solicitor who had been appointed guardian ad litem of the minors in the original suit. In this application the assignee of the decree-holder asked for attachment of the money of the minor judgment-debtors in the hands of H. C. F. Meyer, manager of the Court of Wards, Dacca. In this execution case also the manager filed a petition objecting to the execution of the decree which was numbered Misc. case 20 of 1922. Objection Was taken on several grounds with most of which we are not concerned in the present appeal. The learned Subordinate Judge held that the manager had no loans standi to represent the minors in this case but he nevertheless went into the merits of his objection and decided amongst others the issue of limitation against him.

(2.) This appeal is preferred on behalf of two of the minor judgment-debtors by Mr. Meyer. The third judgment-debtor had attained majority before this appeal was filed. As the appeal has been argued before us the main point that arises is whether the lower Court was right in holding that the applications for execution are proceedings in suit and the guardian ad litem appointed in the original suit would be guardian ad litem in the execution proceeding unless he be removed by an order of the Court and a new guardian ad litem appointed. We are unable to agree that the guardian ad litem appointed in the suit continues as such without a fresh appointment during the execution proceeding. As was observed by Lord Lynd-hurst in Kinsman V/s. Kinsman (1831) 1 R. and M. 622, in order to constitute litis pendentia there must be a continuance of litis contestates, and, therefore, if the suit is ended by decree, there is no longer any lis pendens.

(3.) The learned vakil who appeared for the respondent was unable to show us any authority to support the proposition that the guardianship of the guardian ad litem appointed during the suit continued after the litigation had been terminated by the final decree. He drew our attention to certain ruling in which it had been held that the guardian for the suit continued during subsequent appeals from the decree. But this is irrelevant to the question whether he continued as such during the execution proceedings. We are speaking now of simple decrees as the decree in this suit is for the payment of money and not with relation to mortgage decrees or decrees for delivery of accounts. The only case of those cited which appears at all relevant on this point is the case of Krishna Per-shad Singh V/s. Gosta Bihari Kundu (1907) 5 C.L.J. 434. It was there held that where a person is named as the guardian ad litem in an application for execution, and notice under Section 248, Civil P.C., is issued upon him as such guardian, it must be presumed that he has been appointed guardian by implication by the Court. But to hold that a person who has been named in the execution proceeding as guardian ad litem may under certain circumstances be presumed to have been appointed is a very different matter from holding that the guardian during suit continues to be the guardian without fresh appointment in the execution proceeding.