BARODAPROSAD SUKUL Vs. SAHANLALL BOID

JUDGEMENT

(1.) In the suit out of which this appeal arises, the plaintiff Baroda Prosad Sukul sued the defendants for a declaration to the effect that a decree obtained by them against the plaintiff and his brother Kamada Prosad Sukul was fraudulent and inoperative against him because it had been obtained in contravention of certain provisions of the Civil Procedure Code which have been enacted for the protection of minors. It appears that on the 1 September 1926 the defendants instituted a suit (No. 141 of 1926) against the plaintiff and his brother for the recovery of the sum of Rupees 9,779-4.9 which represented debt which had been incurred by the plaintiff's father on a hatchita. The plaintiff was a minor at the time when the suit in question was instituted and on 20 December 1926 a pleader was appointed to act as his guardian in the suit. This pleader does not appear to have done anything in his capacity as guardian beyond submitting his final reports and on 4 March 1927, it appears that the plaintiff's uncle, Raghunath Sukul, applied to be appointed as guardian-ad-litem of the minor plaintiff; he was appointed as such by an order of the Subordinate Judge passed on the day on which the application was filed and the pleader guardian was discharged. On the same day namely on 4 March 1927, Raghunath Sukul filed a petition of compromise and was allowed to compromise the Suit No. 141 of 1926 on behalf of the plaintiff. On 5 March 1927 a decree was prepared according to the terms of the petition of compromise which had been filed by Raghunath Sukul. On 2 February, 1934 a suit was filed by the plaintiff Baroda Sukul, who was still a minor, for a declaration that the compromise which was effected on 4 March 1927 was fraudulent and that this compromise was not binding on him, because it contravened certain provisions contained in Order 32, Civil P.C.

(2.) The case for the defendants was to the effect that the compromise was binding, that the plaintiff was duly represented in Suit No. 141 of 1926, and that the case was compromised with the permission of the Court as required by Order 32, Rule 7, Civil P.C. The learned Munsif held that the decree in Suit No. 141 of 1926 should be set aside because the compromise had been obtained in contravention of the express terms of Order 32, Rule 7, Civil P.C. The lower Appellate Court reversed the decision of the learned Munsif and held that the decree was operative. The first point urged on behalf of the plaintiff-appellant is that he was not properly represented in Suit No. 141 of 1926 owing to the fact that the provisions of 0. 32, Rule 3 had not been fulfilled. With regard to this matter it appears that from 20 December 1926 until 4 March 1927, the plaintiff was properly represented in the suit by a pleader guardian and it has not been seriously contended that as regards his representation before 4 March 1927, there was any illegality or irregularity.

(3.) It appears however that on 4 March 1927, the plaintiff's uncle Raghunath Sukui suddenly appeared before the Court and asked that he might be appointed as the guardian of the minor Baroda Prosad Sukul. The application filed by Raghunath Sukul is not forthcoming and it appears that it has been destroyed. It is however admitted that no notice to the minor or the natural guardian of the minor was issued as required by 0. 32, Rule 3(4), Civil P. C, and without issuing these notices, the Court passed an order forthwith to the effect that Raghunath Sukul should be appointed guardian of the minor in place of the Court guardian, Sisir Kumar Ghose.