KATHASAWMY CHETTIAR Vs. RAMACHANDRAN (MINOR)

JUDGEMENT

(1.) These two revision petitions are preferred against two orders of the District Munsif of Coimbatore (1) discharging a guardian ad litem and appointing another, and (2) setting aside an ex parte decree. The Plaintiffs, who are the petitioners in both the petitions, sued three brothers to recover some money said to be due in respect of a deposit made with their deceased father. The 1 Defendant was a major and the 2nd and 3 Defendants were minors. The Plaintiffs applied in the ordinary way for appointment of a guardian ad litem to them, proposing first the mother and later the brother, that is, the 1 Defendant. The mother declined to act but agreed that her son might act and the 1 Defendant undertook the duties and was appointed. In the suit he took time to file a written statement but in point of fact he did not file one and made no defence either for himself or on behalf of his minor brothers and the suit was decreed ex parte. Then followed the two applications out of which these petitions arise.

(2.) It was alleged that the brother had failed in his duties as guardian and accordingly the mother applied to be made guardian and at the same time application was made to set aside the ex parte decree. The learned District Munsif has granted both applications. The substantial one relates to setting aside the decree and in the order relating to this he has given his reasons for finding th.at the 1 Defendant had interests adverse to his brothers and had failed to discharge his trust with regard to them by defending; the suit. He accordingly concluded that there was no representation of the minors and that the ex parte decree against them is invalid and he therefore set it aside. "

(3.) This is not a logical way of putting the matter. If the ex parte decree was, as I understand the learned District Munsif to have held, void, there was no need to set it aside. On the other hand if he did set it aside he must have found that one of the reasons laid down in Order 9, Rule 13 of the Civil P. C. for adopting such a course existed. There are various early decisions which held that the reasons which this rule requires for setting aside an ex parte decree are not the only ones, and that the Court has inherent power, in appropriate circumstances, to set aside an ex parte decree even though summons has been duly served and it has not been shown that the defendant has not sufficient cause for not appearing. The question later came before a Full Bench in Neelaveni V/s. Narayana Reddi (1919) I.L.R. 43 Mad. 94 : 37 M.L.J. 599 (F.B.) and it was there held that the Court has no power, apart from the provisions of Order 9, Rule 13, Civil Procedure Code, to set aside an ex parte decree passed by itself. Accordingly, such an early decision as that of Oldfield, J. in Adyapadi Ramanna Udpa v. Krishna Udpa , holding on general grounds that the gross negligence of the next friend of a minor plaintiff is sufficient reason for setting aside an ex parte decree can no longer be regarded as good law. It has been argued in the present case that the District Munsif has not recorded any finding as to whether the minors had sufficient cause for not appearing and allowing an ex parte decree to be passed and that that omission ipso facto renders the order liable to revision. I think that if materials exist in the record and in the Lower Court's order for drawing the conclusion that such sufficient cause did exist it is not desirable to interfere with the order although it may have been passed on incorrect grounds.