SHIYALI VENGU CHETTI Vs. VALJEE KANJEE AND COMPANY

JUDGEMENT

(1.) This is an appeal from an order of the learned District Judge of South Arcot dismissing an application said to be a petition under Section 47, Civil Procedure Code. The petitioner was the second defendant in the suit and he alleged that execution proceedings taken in the District Court of South Arcot were void. He said that those proceedings had all been taken during his minority and this application was in time because he had presented it shortly after attaining his majority. The facts have been sufficiently stated in the order of the learned District Judge and there is no necessity to state them again now. So far as we are able to see, there were no merits in the application, and there are none in the appeal.

(2.) The first contention of the learned Advocate for the appellant is that the District Court of South Arcot had no jurisdiction to go on with the execution proceedings since the order of the High Court transmitting the decree to the District Court of South Arcot for execution was made without notice to any guardian on behalf of the minor judgment-debtor. We think there is no substance in this contention. The act of transmitting a decree for execution is a ministerial act. Vide Banku Behari Chatterji V/s. Naraindas Dutt (1927) L.R. 54 I.AA. 129 : I.L.R. 54 Cal. 500 : 52 M.L.J. 565 (P.C.) and Nachiatnma Achi V/s. Subramonian Chetti (1927) I.L.R. 5 Rang. 775. Such an order can be passed even ex parte. There is nothing in Palaniappa Chettiar v. Valliammai Achi (1928) I.L.R. 52 Mad. 590 : 56 M.L.J. 555 to conflict with this. It must also be in mind that in this case this objection is raised by the appellant more than two years after confirmation of the sale held in execution. We have not been referred to any authority to show that a sale in execution is a nullity merely because the order for transmission was made without the appointment of a guardian for the minor judgment-debtor.

(3.) The next contention on behalf of the appellant was that the District Court of South Arcot had no jurisdiction to sell the property at all because no notice was given under Order 21, Rule 22. We find that the present appellant who was then a minor was represented by his natural father as the guardian from the 31 August 1928. Up to that time it had been supposed that his natural mother Krishnaveni was his guardian and many notices had been sent to her. On the 17 February 1928, she prayed for removal from guardianship and on the 31 August 1928 the learned District Judge passed an order removing her from guardianship and appointing the natural father as guardian. On the same day the natural father as guardian ad litem of the present appellant was allowed 10 days to file his counter, if any, to the execution petition. In these circumstances it is quite clear that no useful purpose would have been served by giving formal notice under Order 21, Rule 22 to the natural guardian. Nor can the absence of such a notice vitiate the sale or render it a nullity. See Chandra Nath Bagchi v. Nabadwip Chandra Dutt (1930) 53 C.L.J. 329.