JAGIRDAR MIR A SHROOF SAHIB Vs. RAGHUNATHA SIVAJI

JUDGEMENT

(1.) THIS is an application on behalf of defendants Nos. 4 and 5 who are minors as well as on behalf of the other defendants who are majors, to set aside the ex parte decree passed against them. So far as the major defendants are concerned, we see no reason to differ from the conclusion at which the learned Judge in the Court below had arrived. The case of the minors is different. Notice was issued to the 1st defendant, their father, to show cause why he should not be appointed their guardian ad lHem : the notice was not served personally, but was affixed to the house. The service has been held by the District Judge to be sufficient and we see no reason to differ from him. The 1st defendant did not appear : nor did he intimate his willingness to the Court to be the guardian. Under these circumstances, he ought not to have been appointed as guardian. Order XXXII, Rule 4 (3), makes it imperative that the consent of the proposed guardian should be obtained for the appointment. THIS was not done. The fact fiat in the subsequent proceedings the father applied on behalf of the minors to set aside the ex parte decree, will not validate the original invalid appointment. The decision of Sankaran Nair and Ayling, JJ., in Letters Patent Appeal No. 3 of 1913 is in point. Reference may also be made to Bal Kishan Lal v. Topeswar Singh 14 Ind. Cas. 845 : 15 C.L.J. 446 : 17 C.W.N. 219 and Kunwar Partab Singh v. Bhabuti Singh 21 Ind. Cas. 288 : 18 C.L.J. 384 : 17 C.W.N. 1165 : (1913) M.W.N. 785 : 14 M.L.T. 299 : 25 M.L.J. 492 : 11 A.L.J. 901 : 16 O.C. 247 : 18 C.L.J. 384 : 15 Bom. L.R. 1001 : 35 A. 487 : 40 I.A. 182..

(2.) WE must set aside the ex parte decree in so far as the defendants Nos. 4 and 5 are concerned, and ask the lower Court to try the case against them on the merits. Costs will abide the result.