RATAN PRASAD MARWARI Vs. BRIDHI CHAND SHROFF

JUDGEMENT

(1.) This miscellaneous appeal arises out of a proceeding for execution of a mortgage decree for sale obtained by the respondent Bridhi Chand Shroff against Baijnath Marwari and his two sons, one of them being the appellant Ratan Prasad Marwari, who was admittedly a minor when the suit was instituted and attained majority after the passing of the preliminary decree but before the date of the final decree. He was represented in the suit by his guardian ad litem Babu Baidyanath Banerji who continued to act as such till the final decree was passed, though, as I have said, the appellant was a major then.

(2.) The decree-holder took out execution describing the appellant as minor. The execution record is not before us, but from the fact that the notice under Order 21, Rule 22 for the appellant was served on Babu Baidyanath Banerji it is clear that the appellant was proceeded against under the guardianship of that gentleman. It appears that later on Babu Rati Nath, a pleader, was appointed guardian ad litem. As the whole record is not before us it is not clear how the guardian was changed; but it must have been done because Babu Baidyanath Banerji did not enter appearance and perhaps the decree-bolder or the Court thought it desirable to discharge him and appoint a new guardian. The execution proceeded against all the judgment-debtors, the appellant being represented through Babu Rati Nath, pleader. Later on, the appellant appeared and filed objection under Section 47, Civil P.C., in which he questioned the validity of the final decree and of the execution proceeding. He urged that the final decree was a nullity inasmuch as at the time when it was passed the appellant had already attained majority and therefore could not be represented at that stage through a guardian ad litem. On the same ground he questioned the validity of the execution proceeding, that is to say, he urged that as he was a major, the execution proceeding in which he had been described as a minor was ineffective and the properties could not be sold in such a proceeding. The objection was disallowed and he has preferred this appeal.

(3.) It appears that after the institution of the appeal the appellant applied for an order staying the sale of the mortgaged properties. That application was rejected and we are informed that the properties have been sold and purchased by the decree-holders. The objection raised by the appellant before the learned Subordinate Judge has been repeated before us in appeal. The first contention of the learned advocate for the appellant has been that the final decree was a nullity on account of the misdescription of the appellant. No authority has been placed before us in support of this contention. The learned advocate referred us to the case in Daulat Singh V/s. Raja Ramji . That case has absolutely no application to the present one. There, a defendant who was a minor, was described as a major, and the case proceeded against him without the appointment of a guardian ad litem. It was held that the decree passed under such circumstances was a nullity. But here when the suit was instituted the appellant was admittedly a minor and was properly represented through a guardian and this state of affairs continued up to the time of the passing of the preliminary decree. The question is whether the final decree, which was passed without the removal of the guardian ad litem and without describing the appellant as major is a nullity. Now, there is no provision in law which makes it incumbent upon a plaintiff to keep himself informed as to the date when a minor defendant, who was sued as such became a major and then to apply to have the guar, dian discharged and to proceed with the suit against the defendant as a major. Sub-section (5) of Order 32, Rule 3, as amended by this Court, runs as follows: (5) A person appointed under Sub-rule (1) to be guardian for the suit for a minor shall, unless his appointment is terminated by retirement, removal or death, continue as such throughout all proceedings arising out of the suit including proceedings in any appellate or revisional Court and any proceedings in the execution of a decree.