KESHAWE SURENDRA SAHI Vs. RANI DEVENDRABALA DASI

JUDGEMENT

(1.) In this appeal the appellant is a minor. He had, on the 10th July 1912, applied under Section 47 and Order XXI, Rule 90, of the Civil Procedure Code, to set aside the sale of his properties in execution of a decree on the ground of irregularities resulting in inadequacy of the price fetched at the sale. This petition was put in on his behalf by his mother as guardian and next friend of the minor.

(2.) The decree that brought about the sale was a mortgage-decree, the mortgagor being Baboo Shyam Surendra Sahi, the uncle of the minor. Shorty after the first execution petition the mortgagor died and thereafter on the 22nd March 1909, an application for substitution was made-by the decree-holder. The present appellant is the sole legatee of his uncle, the mortgagor, under a Will. The above application was that the name of the minor, along wifih that of his father, Hari Harendra Sahi, and some others should be substituted. No application, however, was made under Order XXXII, Rule 3, for the appointment of a guardian ad litcm of the minor. Nor does it appear that any such order was ever made under the above provisions. But on the above application by the decree-holder substitution was made, but the minor was not described in the amended execution petition as being under the guardianship of his father. The minor in this amended execution petition was simply named and described as a minor. It is admitted, however, that the father began to act as guardian of his minor son and he did act as such in the previous stages of the execution proceedings and the Court allowed him to act as such. The father, as already observed, was himself one of the substituted judgment- debtors. The father of the minor has another son by another wife and this son is married to the sister of the present Maharaj Kumar of Hutwa, and it is the Hatwa Raj which is the purchaser at the sale.

(3.) It appears that there were five execution proceedings. The last ended in the sale of the properties.