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1939 DIGILAW 239 (ALL)

Kalian Datt v. Sita Ram.

1939-11-28

BENNET, VERMA

body1939
JUDGMENT Verma, J. - This petition in revision is directed against an order of the learned Civil Judge of Bareilly dated 23th April, 1938, granting an application filed by the sons of Seth Radha Kishan deceased, who was the mortgagee Plaintiff in suit No. 63 of 1930 of that Court, praying that the Court be pleased to revive the said suit in exercise of its inherent jurisdiction u/s 151 Code of Civil Procedure. 2. One Pandit Salig Ram had executed a deed of mortgage in favour of Seth Radha Kishan. The latter filed suit No. 63 of 1930 in the Court of the Civil Judge of Bareilly for the enforcement of that mortgage and, Pandit Salig Ram being dead, impleaded the latter's sons, Tota Ram, major, and Kalyan Dutt alias Kallu, Bhog Chand and Bittan, minors, as Defendants to that suit. It is unnecessary to give all the details, for it is now common ground between the parties that the minor Defendants were not properly represented by a guardian ad litem in that suit. The Court, on 17th July, 1931, proceeded to give judgment in favour of the Plaintiff against all the Defendants, and a decree was passed accordingly. Subsequently a suit, being suit No. 26 of 1932, was filed on behalf of the minors, Kallyan Dutt, Bhog Chand and Bittan, against Seth Radha Kishan for a declaration that the decree No. 63 of 1930, passed on 17th July, 1931, was 'null and void as against the Plaintiffs and was not fit for execution.' This suit was dismissed by the trial Court, but on appeal to this Court it was decreed and it was held that the decree passed in suit No. 63 of 1930 was not binding on the minors, who were Plaintiffs in suit No. 26 of 1932, and a decree in terms of the prayer of the plaint was granted to the 'minor Plaintiffs. This happened on 29th October, 1916. Thereupon the present Respondents, Sita Ram, Sri Kishan and Ram Kishan, sons and legal representatives of Seth Radha Kiahan, who had died in the interval, filed the application giving rise to the proceedings, out of which this petition in revision has arisen, on 30th September, 1937. This happened on 29th October, 1916. Thereupon the present Respondents, Sita Ram, Sri Kishan and Ram Kishan, sons and legal representatives of Seth Radha Kiahan, who had died in the interval, filed the application giving rise to the proceedings, out of which this petition in revision has arisen, on 30th September, 1937. The Court below has granted the application, and has referred to the cases of Bhagwan Dayal v. Paramsukh Das (1916) 14 ALJ 818 and Sunder Lal v. Hari Har Sahai 1937 AWR 418, in support of the view taken by it. This petition in revision has been filed by Kallyan Dutt and Bhog Chand, impleading their brother, Bittan, as a pro forma Respondent. 3. Learned Counsel for the Applicants has argued that the Court below had no jurisdiction to revive the suit. It seems to me, however, that the case is entirely, covered by the decision of this Court in Bhagwan Dayal v. Paramsukh Das (1916) 14 ALJ 818. I consider it unnecessary to say anything further than that I entirely agree with the reason given in the judgment in that case. The law laid down there has been consistently followed in this Court vide Kirpa Kishan Kishori v. Babu Lal (1923) 45 All. 606; Talib Ali Shah v. Piarey Lal 1930 ALJ 938; and Sunder Lal v. Hari Har Sahai 1937 AWR 418. It seems to me that, on its facts, Sundar 1937 AWR 418 Lal's case is a stronger authority in favour of the view taken by the Court below than even the case of Bhagwan Dayal v. Paramsukh Das (1916) 14 ALJ 818. In my opinion this petition in revision is without force and I would dismiss it with costs. Bennet J. 4. The Court below has followed certain reported rulings of this Court and as this is an application in civil revision I do not Consider that the order of the Court below should be interfered with. It appears to me however that to cover the case which is before us it would be desirable to have a rule added either to Order 32 CPC which deals with minors, or a rule added to Order 47 Code of Civil Procedure. which deals with review. Bennet and Verma JJ. 5. We dismiss this application in revision with costs.