BIHARI LAL Vs. BALDEO NARAIN

JUDGEMENT

(1.) The facts out of which this application arises are admitted. A suit was filed against a minor, Bihari Lal, under the guardianship of his brother, Gaya Prasad, and a simple money-decree was passed against him for a sum of Rs. 238-15-0, In execution of that decree, house property belonging to the minor was attached and advertised for sale. The sale was fixed for the 14th of April, 1917. On the 13th of April, 1917, an application was made by Gaya Prasad, as guardian of the minor, as (sic)ng for the adjournment of the sale. The application was put in by a vakil of the court under a vakalatnama executed by Gaya Prasad. In the body of the vakalatnama which is a printed document, and which is usually filled in by the vakil himself or his clerk, the name of Gaya Prasad was not entered. The document reads "I ... appoint" so and so. It was executed by Gaya Prasad. Of this there is no question, but he did not add that he was executing it as the guardian of the minor. Along with this application there was filed an affidavit by Gaya Prasad. Taking the two together, it was quite obvious that the application for adjournment was being made by him as guardian of the minor through, the vakil whom he had appointed to act for him. The court accepted the application to this extent that it granted an adjournment of the sale for six days, and the 20th of April, 1917, was fixed. On that date the sale was held and the property was knocked down to an outsider, i.e., to a person who was no party to the suit, for a sum of Rs. 180, the opposite party here. It is admitted that the property was worth a very great deal more than what it was knocked down for. On the 4th of May, 1917, an application was made under Order XXI, Rule 89, by the same vakil. It purported to be tendered on behalf of the minor. The proper amount had been paid into court within the time allowed and the application must have been accepted by the court and the sale set aside unless the application was not in order. The court of first instance rejected the application in these terms:--"This application under Rule 89, Order XXI, of the Code of Civil Procedure has been presented by the applicant, who is a minor and it is not presented by a next friend. The minor s application was filed through a pleader who does not appear to have been retained by him, vide the vakalatnama. The application is against the provisions of Rule 5 (1), Order XXXII, of the Code of Civil Procedure and is also vague. No order can legally be passed on it without the minor being represented by a next friend. I therefore reject this application with costs." That is the order really in question here. The lower appellate court found, and rightly found, that the application in itself was not vague and that it entirely complied with Order XXI, Rule 89, but it held substantially for the same reason as the first court that the application had not been properly presented on behalf of the minor, and rejected the application. From this order no appeal lies to this Court; hence an application in revision.

(2.) Two arguments are raised against my interfering. First of all it is said, on the authority of BalaKrishna Udayar v, Vasudeva, Ayyar (1917) I. L. R. 40(sic) 128 and three recent rulings of this Court reported in I.L.R., 40 Allahabad, pages 425 and 612, and 16 A. L. J., page 535, that this Court has no power to interfere. It is said that the lower court had jurisdiction to go wrong and that, assuming it did go wrong its decision is final. Secondly, it is argued on the merits that the decision on the point of law is correct.

(3.) It seems to me that, put in plain language, the court declined to hear the applicant. It declined to hear the minor himself, because of his minority, and it declined to hear the pleader because of a supposed defect in his vakalatnama. It seems to me that if the court was wrong in its reasons for not hearing the pleader and therefore not accepting the application, it declined to exercise a jurisdiction vested in it, or at least acted with material irregularity in the exercise of its jurisdiction.