BACHOO PRASAD SINGH Vs. GOBARDHAN DAS

JUDGEMENT

(1.) This is an appeal by the decree-holders who in execution of a money decree against a number of members of a joint family put up to sale certain properties of the joint family. After the sale three of those members presented objections under Section 47, Civil P.C., and also under Order 21, Rule 90 contending that the execution as against them was not properly constituted at its inception and the Court had no jurisdiction to proceed with it. The Court allowed the objection and declared that the sale which had been held should not affect the interest of the minor judgment-debtors who were petitioners before it. The facts as to representation of these minors are that in the original suit they were represented by a Pleader, Babu Jagdish Chandra Mitra, appointed by the Court to be their guardian ad litem; but in the execution application no reference is made to the above-named pleader.

(2.) Execution was sought to be taken against the minors describing them as under the guardianship of Gobardhan Das who is brother of one and uncle of others of the minors and is the managing member of the joint family. In the course of the proceedings in execution Gobardhan appeared. He took time and he obtained adjournments of the sale from date to date, asking for adjournments on some of these occasions in the name of all the judgment-debtors including the minors and waiving all objections regarding the necessity of issuing a fresh sale proclamation in consequence of the sale having been adjourned.

(3.) The sale was eventually held on 5 May 1938 and the property knocked down to the decree-holders and the objection under Section 47 and the application under Order 21, Rule 90 was presented on 4 June 1938. It is presented in the name of the minors through Babu Radha Kishun Daga their maternal uncle. An application was presented for the discharge of Babu Jagdish Chandra Mitra and appointment of the maternal uncle as their next friend. It is obvious that the failure in the execution petition to name Babu Jagdish Chandra Mitra as the guardian ad litem of the minor and to issue notice to him under Order 21, Rule 22 and to the minors through him was in contravention of the correct procedure.