LAWS(PVC)-1909-7-65

GAYA DIN Vs. MATA DIN

Decided On July 06, 1909
GAYA DIN Appellant
V/S
MATA DIN Respondents

JUDGEMENT

(1.) This appeal arises out of a suit brought by the plaintiff respondent for possession of a house, which was purchased by his father Pancham at an auction sale on the 5 of March, 1904. The facts are these: A suit was brought by Banni Ram and Raja Ram against four persons, namely, the defendants Mata Din, Ram Adhin, Ram Narain and Chitrakoti to recover money due on two hundis alleged 4o have been executed in favour of those plaintiffs on behalf of a firm of which the defendants were members. Chitrakoti is a minor, and in the suit he was described as represented by his father Ram Adhin as his guardian ad litem. The plain, tiffs filed an application supported by an affidavit praying that Ram Adhin might be appointed guardian of the minor for the suit. Notice was issued to Ram Adhin to show cause, but he did not appear. The Court, however, does not appear to have recorded a formal order appointing Ram Adhin as guardian ad litem of the minor, but summons was issued to him as such guardian, and in a proceeding recorded on the date of the hearing he was described as guardian ad litem of the minor. The defendants did not appear, and on the 9 of May 1903, an ex parte decree was passed. In execution of that decree the property of the joint family, viz., the house now in dispute, was sold by auction on the 5 of March 1904, and was purchased by Pancham the deceased father of the present plaintiff. On the 12 of October 1904, he obtained formal possession. It is alleged that he was subsequently dispossessed by the defendants, who are now in possession. The defendants Mata Din, Ram Adhin and Ram Narain were prosecuted by Pancham, with the result that they were punished. We may observe that after the auction sale an application to set it aside was made by the three adult defendants on the ground of irregularity and on other grounds, but that application was rejected, and the sale was confirmed on the 21 of May, 1904. On the 7 of February 1905, an application was made on behalf of the minor Chitrakoti to have the ex parte decree set aside, and on the 8 of July 1905, the application was granted and the ex parte decree was set aside. On the 4 of August 1905 he applied to have the sale set aside on the ground that he was not properly represented in the suit. The Court of first instance granted his application and set aside the sale, but on appeal the learned District Judge reversed the order of the Court of first instance and on the 17 of April 1906, dismissed the application and affirmed the sale. The suit of Banni Ram and Raja Ram was heard again, but it was not resisted, and on the 16 of January, 1906, an ex parte decree was again passed against all the defendants.

(2.) As the defendants are still in possession of the house purchased by the father of the plaintiff, the plaintiff instituted the present suit for recovery of possession. The claim was resisted on various grounds, the principal grounds being that the defendant Chitrakoti was not properly represented in the suit, no guardian ad litem having been appointed by the Court; that the decree passed in the suit and the auction sale held in pursuance of the decree Were therefore invalid and were not binding on the minor, and that nothing passed to the purchaser under the said auction sale.

(3.) The Court of first instance dismissed the plaintiff's suit, but the lower appellate Court has decreed it. The learned Judge was of opinion that the order of the 17 of April, 1906, to which we have referred above, is binding on the defendants and that they are not entitled to plead that the auction sale was invalid.