KALIPADA SIRKAR Vs. HARIMOHAN DALAL

JUDGEMENT

(1.) This appeal is directed against an order for execution of a decree for costs. The decree was made on the 24th September 1913 and is in these terms: it is ordered and decreed that this suit be dismissed, and the costs of the suit Rs. 400-8-9 be paid by the plaintiff to the above-named defendant with interest at 6 per cent, per annum from this day till the date of realisation." In the cause title, set out at the commencement of the decree, the plaintiff is described as follows:--"Lunatic Brojogopal Sarkar, represented by certificated guardian under Act XXXV of 1858, Srimati Mohamaya Dasi, wife of the said Brojogopal Sarkar." The decree consequently entitles the successful defendant to recover the costs allowed in his favour from the lunatic Brojogopal Sarkar. On the 2nd February 1915, the defendant decree-holder applied for execution in accordance with Order XXI, Rule 11(2). Execution was sought against Kalipada Sarkar, the infant son of Brojogopal Sarkar, who had died in the interval. The Court, accordingly, directed notices to issue under Order XXI, Rule 22(1), Clauses (a) and (b). The usual notice was also directed to issue upon Mohamaya Dasi, who had been proposed by the decree-holder for appointment as guardian ad litem of the infant. On the 17th March 1915, the Court with the consent of the proposed guardian appointed her guardian ad litem, of the infant. On the 21st April 1915, the Court issued a fresh notice under Order XXI, Rule 22(1)(b), which was served in due course. On the 10th July 1915, the lady filed a petition of objections. She stated that she had lately attained majority and was not a fit and proper person to act as guardian ad litem of her infant son. On the writ, she urged that when the decree for costs was made in the original suit, she was herself a minor, not competent to act as next friend of the lunatic, and that the decree was consequently illegal and ultra lirqs, incapable of execution against the estate of her husband in the hands of his minor son. The Court overruled these objections and directed execution to proceed against the assets of Brojogopal Sarkar, the deceased judgment-debtor, in the hands of his minor son." The propriety of this order is the subject of controversy in the present appeal, preferred on behalf of the infant by his mother.

(2.) The first objection taken in the Court below is entirely groundless. The lady consented to act as guardian ad litem; there is no reason why she should be discharged; there is no conflict of interest between her and her infant son in this matter. Indeed this objection, though mentioned, has not been seriously pressed in this Court.

(3.) The second objection taken in the Court below raises a question of some nicety. Th0 facts, essential for the full appreciation of the arguments addressed to us, may be briefly stated. The original suit was instituted on behalf of the lunatic by his wife, who had been appointed manager of his property when he was adjudged a lunatic on the 5th August 1911 under Act XXXV of 1858. The defendant pleaded that the suit was not maintainable, inasmuch as the manager was herself a minor and incompetent under the law to act as next friend of the lunatic. The Subordinate Judge took evidence upon this preliminary question, and came to the conclusion that Mohamaya Dasi was a minor, not only when she got herself appointed manager of the estate of her husband under Act XXXV of 1858, but also at the date of the institution of the suit, and had not attained majority even at the time of the trial. The Court held accordingly that she could not proceed with the suit on behalf of her husband and dismissed it with costs. The decree set out above was drawn up on the basis of this judgment. The question for determination is, whether validity of the decree can be questioned in execution proceedings on the ground that as the lunatic plaintiff was not properly represented by a competent next friend in the suit, no operative decree for costs could have been made against him.