BANSIDHAR KANUNGO Vs. NABAB KHAN

JUDGEMENT

(1.) This petition by defendants 1 to 4 has been filed in the following circumstances.

(2.) The petition arises out of a suit filed by Nabab Khan (opposite party) for the redemption of certain property. The petitioners are prior mortgagees in respect of this property under a simple mortgage bond executed on 22 September, 1922. They obtained a decree for sale on the foot of this bond and purchased the property in execution of the decree. Nabab Khan, who is a puisne mortgagee in respect of the suit property under a simple mortgage bond dated 26 May 1925 not having been impleaded in the suit brought by defendants 1 to 4, has brought the present suit (No. 253 of 1945) to redeem the property. There are four defendants in the case, defendants 1 and 2 being majors and defendants 3 and 4 minors. A pleader guardian was appointed for the minors but died after filing the written statement. In ignorance of this fact, the suit was allowed to proceed without appointing a fresh pleader guardian and a preliminary decree was granted by the Munsif on 27 September 1946. An appeal has been filed before the District Judge against this preliminary decree, being Appeal No. 346 of 1946, and is said to be still pending. On 18 November 1946 Nabab Khan applied to the Munsif for a final decree. Opposing this, the defendants brought to the notice of the Court for the first time the fact of the non-representation of the minors. It was contended on behalf of Nabab Khan that the minors had attained majority. This contention was rejected by the Munsif, and on 14 December 1946, the Munsif granted a final decree in the terms of the prelixninary decree against defendants 1 and 2, and made a note that defendants 3 and 4 would not be bound by either of these decrees. On 21 December 1946, Nabab Khan applied to the Munsif Under Section 151, Civil P.C., asking that the suit should be restored to the stage at which the guardian ad litem died, on the ground that both the decrees are now void. This petition has been allowed by the Munsif. Hence the present petition.

(3.) It appears to me that the order of the Munsif falls into two parts first part affecting the preliminary decree and the latter the final decree. Mr. De for the petitioners contests the jurisdiction of the Munsif so far as it relates to the preliminary decree, a contention which, in my opinion, is fully justified.