PALACHERLA VENKATA RAO BEING MINORS REPRESENTED BY MOTHER AND GUARDIAN VENKAYAMMA Vs. PALADUGULA RATTAMMA

JUDGEMENT

(1.) The petitioners are minors. They were defendants in O.S. No. 63 of 1941 on the file of the District Munsiff of Rajahmundry. That suit was a mortgage suit and the plaintiff obtained a decree for sale. The property was brought to sale at a court-auction on the I2lh October, 1943. On the 1 of November, 1943, the petitioners represented by their mother filed an application under Order 21, Rule 90. In the suit, their uncle had been appointed guardian ad litem and that appointment had never been cancelled. On the 22nd November, 1943, the petitioners filed a security bond in the proceedings under Order 21, Rule 90. The bond was returned to them on the 26 November, 1943. The reason for that return is stated as follows in an endorsement on the affidavit: 1.The security bond should clearly state whether the property described belongs exclusively to the surety or whether it belongs to the minor judgment-debtors.

(2.) An affidavit stating the interest of the surety in the property should be filed. This endorsement closed with the following remark: Returned. Time till 3-12-43. There is a further endorsement on the affidavit under date 3 December, 1943, as follows: An affidavit in support of the bond is herewith filed. It is now stated, in the security bond that the surety has sole and absolute rights in the property offered as security. The bond may be accepted. Represented. A further endorsement appears on the affidavit dated 6 December, 1943, which reads as follows: The petition was called and rejected on 3 December, 1943, as there was no representation Returned. It is clear from these endorsements?and the entries in the B Diary substantially confirm them?that after time had been granted until 3 December for the filing of the further affidavit the case was called on that day and dismissed for want of appearance. The endorsements also show that in fact on some time on that day, namely, the 3 December, 1943, the necessary affidavit was filed and accepted presumably in the office of the Court. 2. The petitioners applied to have this order of dismissal set aside but their application was rejected on the ground that Order 9, Rule 15, Civil Procedure Code, had no application to such a matter. They then filed an appeal against the order of the 3 December, 1943. Notice of the appeal was issued to the present respondents and it will be appreciated that this was the first occasion on which the respondents had an opportunity of raising any objection to the application under Order 21, rule go of the Civil Procedure Code. On appeal in the lower Court, the respondents objected that the application under Order 21, Rule 90 was bad inasmuch as in it the minors were represented by their mother whereas their uncle was the guardian ad litem appointed by the Court. Reliance was placed on Order 32, Rule 3(a) of the Code.

(3.) The learned District Judge upheld that objection and also held against the petitioners on their contention that the application could not properly be dismissed in view of the fact that they had time within which to file the required additional affidavit until the end of the day fixed, namely, 3 December, 1943.