PUTHIPADATH ALIAS VEDAKKE; POTTU KELATHILA ALIAS CLAKKINGAL KARTHIYAYINI AMMAL S DAUGHTER KOCHU KUTTY AMMA ALIAS NARAYANI AMMA AFFECTED BY MENTAL INFIRMITY AND IDIOCY BY NEXT FRIEND PANDARATHIL SIVARAMAN MENON Vs. MOOTHIRANGOT ALIAS PARATTIPALLI MENAKKAL

JUDGEMENT

(1.) The present suit was brought upon a mortgage and a decree was passed against the first defendant described as the Karnavastri and also against her daughter the second defendant. These two persons, it is alleged, are the only members of the tarwad. The Civil Revision Petition arises out of an application made after the decree on behalf of the second defendant. It is said that, at the time of the passing of the decree and long previous to it, she was a lunatic and that the decree as against her should therefore be disregarded; on this ground the lower Court was requested to revive the suit and proceed with it after appointing a suitable guardian for her.

(2.) The learned Subordinate Judge has misunderstood the nature of the application. The Court that passed the decree happened also to be the Court that was executing it. The learned Judge thought that the application was made to the executing Court, whereas in truth it was made to the Court that passed the decree. The ground of his decision that the executing Court cannot go behind the decree is therefore wrong. But it seems to me that, although the lower Court's reasoning is wrong, its conclusion must be supported.

(3.) The question shortly is, has a case been made out for the exercise by the Court of its inherent powers under Section 151, Civil Procedure Code? It is not and cannot be disputed that the second defendant has another remedy open to her, namely, of impeaching the decree by filing a regular suit. See Kalipada Sarkar V/s. Hari Mohan Dalal (1916) I.L.R. 44 Cal. 627 at 637. Mr. Kutti Krishna Menon relies upon some cases, where on its being found that the decree was inoperative having been passed against a minor, the suit on the plaintiff's application was revived. Bhagawan Dayal V/s. Param Sukh Das (1916) I.L.R. 39 All. 8, Kirpa Kishan Kishori V/s. Babu Lal (1923) I.L.R. 45 All. 606 and Talib Ali Shah V/s. Piarey Lal (1430) I.L.R. 52 All. 924. In Samaresh Chakravarti V/s. Jalpaiguri Banking and Trading Corporation, Ltd. (1930) 34 C.W.N. 989 the defendant was a lunatic and there too, the party, at whose instance the case was revived, was the plaintiff. As Mr. Govinda Menon points out, those cases are distinguishable. The appli cation here is made by the defendant to whom there is another remedy open. Moreover, cases may be conceived where, after it is discovered that the defendant is a minor or a lunatic, the plaintiff may not care to remove and proceed with the action; he may be content to treat the decree as a nullity and there is no reason why he should at the defendant's instance be compelled to revive his suit. The cases cited by the petitioner's Counsel have therefore no direct bearing.