BROJENDRA KISHORE ROY CHOUDHURY Vs. SKSHAMSERALI

JUDGEMENT

(1.) The appellant obtained a decree for rent against the respondents on 1 July 1934. One of the respondents is a minor. His father was appointed his guardian for the suit in which the said rent decree was passed. The appellant put this rent decree into execution in the Court of the Munsif at Iswarganj on 21 August 1934. The office of the learned munsif reported to him that the decree-holder had not filed any application or affidavit for the appointment of a fresh guardian of the minor judgment-debtor as required under the standing order of the District Judge. The learned Munsif ordered the appellant to file the petition and affidavit. The appellant however did not comply with this order with the result that his application for execution was dismissed by the learned Munsif on 5 September 1934. An appeal was thereupon taken by the decree-holder to the lower appellate Court. The learned District Judge remanded the matter for rehearing to the Munsif on the ground that whether a fresh guardian ad litem should be appointed in the execution proceeding or not was a matter entirely in the judicial discretion of the Court and could not be decided by the standing order of the District Judge. The matter then went back to the Munsif again and the learned Munsif after hearing the case recorded the following order: Heard pleader. In my opinion a fresh guardian ad litem should be appointed in this execution proceeding. The decree holder must file a petition and affidavit within eight days.

(2.) On 14 March 1935, the execution petition was dismissed by the Munsif for failure of the decree-holder to comply with this order. The decree-holder again appealed to the lower appellate Court and the learned District Judge has dismissed the appeal on the ground that it was not competent. Hence this second appeal by the decree-holder. The decree-holder has also filed an application for revision under Section 115, Civil P.C., in the alternative. A preliminary objection has been taken by the learned advocate for the respondent that the order of the learned Munsif rejecting the decree-holder's application for execution is not one under Section 47, Civil P.C., as the application was rejected for default of the decree-holder to comply with the Court's order. We are unable to accept this contention. The effect of the order of the Court below is that the present execution case is not maintainable until and unless the decree-holder gets a fresh guardian appointed by the Court. The point for determination in this appeal is whether the decree-holder is bound to have a fresh guardian appointed to represent the minor respondent in the present execution proceeding. Order 32 of the Code provides for the appointment of the guardian of minor defendants in the suit. There is no express provision for the appointment of the guardian of a minor judgment-debtor in execution proceeding. By Section 141, Civil P.C., the procedure provided in the Code in regard to suits is to be followed as far as it can be made applicable in all proceedings in any Court of civil jurisdiction. This section has replaced Section 647 of the Code of 1882. Before 1892 there was a difference of opinion between the different High Courts on the question whether Section 647 of the Code of 1882 applied to execution proceedings. In order to explain the meaning of this section the following explanation was added to this section by Amending Act of 1892: This section does not apply to applications for the execution of the decrees which are proceedings in suits.

(3.) In Thakur Pershad V/s. Sheik Fakirh Ullah (1895) 17 All 106 their Lordships of the Judicial Committee, while considering this explanation made the following observations: Their Lordships attention has been called to the recent Act 6 of 1892 which would appear to have been passed in order to avoid the disturbance of practice caused by the Allahabad rulings...But having regard to the controversies which have arisen and the difference of opinion between the various High Courts their Lordships have thought it right to state their opinion that the Act of 1892 does nothing more than express the true meaning of the Civil Procedure Code.