RAI SATYADEVA NARAYAN SINHA Vs. TIRBENI PRASAD

JUDGEMENT

(1.) This appeal by defendants fourth party consists of defendants 5, 6 and 7 who are puisne mortgagees in an action by the plaintiff who is the assignee of the original mortgagee who was defendant third party in the suit for a mortgage decree. The appellate Court setting aside the trial Court's judgment under which a personal decree against the mortgagee was given, gave a mortgage decree for sale of the property binding upon all parties to the suit. Two points arise in the appeal but referring to the same matter. The appellants contend that they should be dismissed from the suit and the decree for money pronounced by the trial Court restored, first, by reason of the contention that they were not bound by the decree of the lower Court inasmuch as one of their members who was a minor defendant 7, was not properly represented in the appeal by a guardian ad-litem, they all being parties to the mortgage and necessary parties to the suit; and, secondly, it being the fact that at the time the original mortgage was entered into and at all other material times the mortgagee was a minor, the mortgage transaction was void.

(2.) As to the first point the facts are these. Defendant 7 of the fourth party was properly represented at the trial of the suit by a guardian-ad-litem, but in the notice of appeal to the lower Court he was described as being represented by his father who was then dead. This was corrected before the hearing of the appeal on 27 July 1931 and the guardian-ad-litem who represented the minor during the trial, was duly named in the notice of appeal. It was then found that that guardian being a pleader who had given up practice could not be served. Then on 24th August 1931, a date which was out of time for the purposes of the appeal, the Court appointed a new guardian-ad-litem on petition without making any formal order discharging the old guardian. The respondents, in the Court below objected by a petition on the same day, i.e., on 24 August 1931, but this matter was ordered to be heard at the time of the hearing of the appeal.

(3.) The Judge in the Court below, dealing with the argument which appears to have been directed against the order of 27 July 1931 held that he had power to extend the time under Section 5, Lim. Act, and therefore the notice was in order. The mention of the deceased father in the first notice of appeal was clearly a mistake and there is equally no doubt that the appeal was properly constituted in the sense that the minor defendant was properly represented by a guardian-ad- litem. Assuming that he was not, it was contended that being proper parties to the suit and actually not being parties, the decree was a nullity as against defendants fourth party. It is now the unanimous opinion that failure to make a person interested in the equity of redemption a party to the mortgage suit is not fatal, as the Court may exercise its powers of joining parties under Order 1. In so far as the appellants rest their case on the contention that there was no formal discharge of the old guardian, I am of the opinion that it fails. The petition for the appointment of a new guardian claimed the discharge of the old, and I should hesitate to hold that the mere absence of a formal order discharging the old guardian while appointing a new one was fatal. For two reasons, first, by reason of the powers of joinder of parties given to the Court under the Civil Procedure Code and secondly as regards the other part of the argument for the reason which I have just stated, it seems to me that this part of the argument fails.