BHAGWAN DAYAL Vs. PARAM SUKH DAS

JUDGEMENT

(1.) In 1911 Param Sukh Das instituted a suit against Parbhu Lal and Bhagwan Dayal, minors, and their uncle Raghubar Sahai on a mortgage dated the 17th of September, 1904, for sale of property. Ragaubar Sahai, the uncle, was named by him as a fit and proper person to be appointed as guardian of his minor nephews. Raghubar Sahai refused to act as guardian and in doing so he informed the court that the minors were living with their mother, and not with him. The court thereupon appointed the amin of the court as the guardian ad litem of the said minors and made an ex parte decree for sale on the 30th of August, 1911. An application was made on behalf of the plaintiff for setting aside the ex parte decree on the 8th of June, 1912. The court, however, rejected the application. The plaintiff then brought a suit to set aside the ex parte decree on the ground that "the appointment of the plaintiff s guardian as made was improper and contrary to law and the plaintiffs had no knowledge of the suit aforesaid, and on account of this they were deprived of their right to set up a lawful defence."

(2.) The suit was dismissed by the two courts below, but on the 19th of January, 1915, a Division Bench of this Court presided over by the Hon ble the Chief Justice and Mr. Justice Banerji decreed plaintiff s suit. The judgement of this Court is reported in I.L.R. 37 All. 179. It may be noted that the only ground upon which the suit was based was that the order appointing the amin as guardian of the plaintiff was bad for the, many reasons set forth in the plaint, and upon that ground the proceedings taken in the suit after the date of the said order were invalid and bad in law. This Court set aside the decree in the suit on that ground alone. The only point in. controversy between the parties in that suit was whether the appointment of the amin as guardian ad litem of the minors was proper and whether by reason of the defect in his appointment, the proceedings in the suit which followed and led up to the decree were invalid and void in law. No issue was framed in that suit as to whether the mortgage debt in suit was a good and valid debt binding upon the minors, and whether the mortgage-deed in suit was duly executed and capable of enforcement as against them. The decree in that suit was set aside on grounds other than those which were concerned with the merits of the claims as urged in that suit. The decree for sale in the suit on the mortgage having been set aside by this Court, on the ground mentioned above, the plaintiff, applied on the 26th of March, 1915, to the court below to restore the suit to the file of pending cases and to proceed to hear and dispose of the same according to law, after appointing a fit and proper person to act as guardian ad litem of the minor defendants. By its order, dated the 15th of May, 1915, the court below has admitted the suit to the file of pending cases so far as the minor defendants are concerned, and directed the plaintiff to take proper steps to appoint a guardian ad litem for the said minors, to enable it to proceed with the further hearing of the case. Mr. Uma Shankar Bajpai has applied for the revision of the said order and has asked us to set aside, the said order on the ground that "the court below had no jurisdiction to revise the proceedings of the original suit against the applicants."

(3.) A minor against whom a decree has been made without the appointment of a proper guardian for him has several remedies open to him. He may, if the facts of the case justify, in that very suit,- (a) appeal against the decree, (b) apply for re-hearing under Order IX, Rule 13, (c) apply for a review of judgement, or (d) apply for an order under Rule 5(2) of Order XXXII of the Code.