KASHIRAM Vs. BALWANT

JUDGEMENT

(1.) IN this case the plaintiff's late father Amrita and two others executed a mortgage-deed for Rs. 750 in favour of defendant 1 who sued on that document, obtaining on 31st August 1917, a preliminary decree against the plaintiff Kashiram, he then being a minor. This decree was made final on 31st August 1918. The plaintiff brought the present suit, contending that no notice of the final decree was issued or served on his mother, his uncle Ganpat or his maternal uncle Sheoram with whom he then lived. The Court reader who had been appointed guardian ad litem for him during the suit did not let the family know of the final decree proceedings. He contended, therefore, that the final decree did not bind him and asked it to be set aside and that he be given possession of the mortgaged property. Defendants 2 and 3 had purchased the property from defendant 1.

(2.) DEFENDANT 1 contended inter alia that the plaintiff's father had only a two-thirds share in the field. But this contention has been rightly rejected by both the lower Courts. The defendant also denied fraud or gross carelessness on the part of the guardian ad litem and stated that notice of the final decree had been duly served on that guardian who was present in Court when the decree was made final.

(3.) ON appeal by defendant 1, the Judge of the lower appellate Court writes: ...respondent 1's (plaintiffs) mother having refused to act as guardian ad litem the Court reader was appointed in due course as guardian ad litem and the appellant was asked to pay Rs. 50 for engaging a pleader on behalf of the minor. A defence was put in on behalf of the minor by his pleader and the preliminary decree was passed after some protracted trial on 1st September 1917. It may not be out of place to mention here that the suit was instituted so far back as on 4th January 1915 and respondent 1 and his mother could not be served in spite of the repeated summonses and notices till 20th September 1916. Respondent 1 was then admittedly 15 years old and thus he and his mother cannot deny knowledge of the suit when they were served after repeated summonses. The said suit did not end with the preliminary decree. It continued right up to the date of the final decree, vide explanation to the definition of the term decree in Section 2, Sub-section 2, Civil P.C. Plaintiff-respondent 1 cannot, therefore, complain of the ignorance of the preliminary decree and the proceedings subsequent thereto (which are admittedly the proceedings in the suit). At any rate his mother cannot claim the said ignorance. In this view of the case no notice is necessary to be given to a defendant when a decree is to be made absolute. Absence of notice cannot be a ground for setting aside a final decree : vide Babooji v. Ramgopal A.I.R. 1923 Nag. 320. In the present case a notice was served on the guardian ad litem (who was the reader of the Court) and he was present when the case was taken up. It is urged that he should have informed respondent 1's mother or his other relations of the proceedings takes for making the decree absolute. No doubt it would have been well and good had he done so. However, since he did not do anything of the kind I do not think the proceedings are in any way vitiated. The law does not require any notice being given and thus respondent 1 cannot claim any.