Niru Saha v. Bhupati Kumar Samana — 1989 DIGILAW 340 (CAL)

Judgment 1. THIS re-visional application under Section 115 of the C. P. Code is against an order dated 19/3/88 of the Assistant District Judge of Burdwan by which an application under Section 47 of the C. P. Code filed by the petitioners in connection with Title Execution Case No. 3 of 1982 was dismissed Relevant facts. 2. THE Opposite Party No. 1, Bhupati Kumar Samanta, instituted Title Suit No. 73 of 1969 in the Court of the Subordinate Judge of Burdwan against Pran Ballav Saha and his wife, Bela Rani Saha for specific performance of a contract for sale of a dwelling house. That Pran Ballav Saha is Opposite Party No. 2 before us. During the pendency of the suit Smt. Bela Rani Saha died and she was substituted by her sons and daughters including the petitioners Niru Saha, Mantu Saha and Smt. Gita Saha who were minors at that time. On the prayer of the plaintiff, for these minors substituted defendants, the Court appointed an Advocate namely Sri Jamani Sikdar as guardian for the minors for the suit. Incidentally, this Jamani Babu was also the Advocate for Pran Ballav Saha (Father of the Minors. The learned Advocate jamani Babu accepted the appointment and also filed written statement for the minors. The suit came up for hearing on 24/2/75. On that day Jamini Babu as guardian for the minor defendants prayed for an adjournment on the ground that the plaintiff had not deposited the fees for the guardian adlitem for conducting the case of the minors. The pravers was rejected and the parties were directed to be ready at once. Ever then none of the defendants appeared to contest the suit and the Court guardian Jamini Babu also took no steps on behalf of the minors the suit was accordingly heard ex-parte and was decreed against all the defendants. After the ex-parte decree the father, Pran Ballav Saha, filed an application tinder Order 9 Rule 13 of the C. P. Code to set aside the ex-parte decree. That application being Misc. case No. 2/75 was dismissed. Against that order dismissing the Misc. Case 2/75 an appeal was preferred being Misc. Appeal No. 103 of 1975. This Misc. Appeal also failed. That application being Misc. case No. 2/75 was dismissed. Against that order dismissing the Misc. Case 2/75 an appeal was preferred being Misc. Appeal No. 103 of 1975. This Misc. Appeal also failed. This was followed by an application under Section 47 of the C. P. Code purporting to have been made by Sri Pran Ballav Saha for self and as guardian of the minors. This application under Section 47 of the C. P. Code registered as Misc. Case No. 7/85 was dismissed by the Court. A revisional application against the order passed in this Misc. Case No. 7 of 1985 was also dismissed by this High Court. 3. IT has been contended that the aforesaid Misc. Cases (Nos. 2/75, 7/7 5) and Misc. Appeal No. 103/75 were not made by the Court appointed guardian of the minors and the minors were not represented therein, and, therefore, any finding in those proceedings would not be binding upon the minors. 4. THE decree passed in the suit was put to execution in Title Execution Case No. 3/82. The minor defendants meanwhile attained majority, and now they on their own challenged the ex-parte decree by filing an application under Section 47 of the C. P. Code which was registered as Misc. case No. 1/84. Their main contentions were that in the original suit the guardian adlitem was appointed without service of notice as required under Order 32 Rule 3 of the C. P. Code, that the minors were not properly represented in the suit and, therefore, the decree against the minors was a nullity. The learned Assistant District Judge dismissed the application under Section 47 of the C. P. Code taking this view that the Execution Court cannot go behind the decree and secondly that the finding in the earlier Misc. Case No. 7/85 under Section 47 of the C. P. Code operated as resjudicata. This order of the learned Assistant District Judge is under challenge before us. It has been forcefully contended before us that the provisions of Order 32 Rule 3 of the C. P. Code (as they existed prior to the amendment of 1976) were not followed by the Court before appointing the learned Advocate, Jamini Sikdar, as the guardian ad litem for the minors. It has been forcefully contended before us that the provisions of Order 32 Rule 3 of the C. P. Code (as they existed prior to the amendment of 1976) were not followed by the Court before appointing the learned Advocate, Jamini Sikdar, as the guardian ad litem for the minors. It has been submitted that no notice upon the minors was served before appointment of the Court Guardian, and, therefore, the appointment was invalid and the minors were not properly represented in the suit. 5. WE have heard the submissions of the learned Counsels at length and have also perused the Lower Court record. 6. IT appears that a notice was sought to be served upon the father, Pran Ballav Saha, under Order 5 Rule 20 of the C. P. Code. But the service of the notice, however, was not accepted by the Nazir of the Court. Be that as it may, it clearly appears from the petition of the minors' father, Pran Ballav Saha, in Misc. Case No. 2/75 that before the ex-parte decree he (Pran Ballav Saha) had knowledge through his Advocate Jamini Babu that Jamini Babu had been appointed guardian ad litem for the minor defaults. Pran Ballav Saha also paid Jamini Babu the necessary costs. Even knowing from Jamini Babu that he (Jamini Babu) had been appointed guardian ad litem for the minors, the father Pran Ballav Saha did not raise any objection before the Court. Rather he also accepted the appointment by implication. This being the position, the irregularity, (if there be any), arising from non service of a formal notice from the Court on the natural guardian father Pran Ballav Saha cannot vitiate the appointment of the guardian ad litem. The natural guardian (father Pran Ballav Saha) was fully aware of the appointment of Advocate Jamini Babu as the guardian for the minors. The purpose of issuance of the formal notice was duly served. It is true that no formal notice upon the minors themselves was served in terms of the provision of Order 32 Rule 3 of the C. P. Code, as it existed then. But that fact by itself cannot defeat the appointment of the Court Guardian. We hold this view for two reasons. First, on the record Advocate Jamini Babu cannot be said to have been an unqualified person for appointment as guardian of the minors. But that fact by itself cannot defeat the appointment of the Court Guardian. We hold this view for two reasons. First, on the record Advocate Jamini Babu cannot be said to have been an unqualified person for appointment as guardian of the minors. He was an Advocate, and moreover he was the lawyer for the minors' father Pran Ballav Saha whose interest was not adverse to that of the minors. Secondly, there is nothing to show that the appointment itself of Jamini Babu was to the prejudice of the minors. 7. IN interpreting the provisions of Order 32 Rule 3 of the C. P. Code the Allahabad High Court in AIR 1928 page 621 accepted the proposition enunciated in various other rulings referred to therein, that the appointment of a guardian without notice to the minor merely amounts to an irregularity which does not justify the Court in setting a decree aside except upon proof of fraud or collusion on the part of the guardian. 8. IN AIR 1931 Madras 674 the principle accepted was that where a guardian, and that a qualified person, was appointed, but where there was some irregularity in the proceeding, the decree is not a nullity unless the irregularity has prejudiced the minor. On has to see whether the irregularity has prejudiced the minor. In the case before us, the appointment itself of Advocate Jamini Babu (who was acting as the lawyer for the father of the minors) cannot be said to have prejudiced the minors, even though no notice upon the minors was served. In AIR (32) 1945 Patna 133 it was observed that where a minor is represented on the record by a guardian not disqualified from acting, the jurisdiction of the Court to try and determine the cause as against the minor is complete and cannot be ousted on proof that the Court did not follow the appropriate procedure for the appointment of the guardian as laid down in Order 32 of the C. P. Code. 9. WE are inclined to take the views which appear in the aforesaid reported decisions. We do not think that non service of the notice upon the minors themselves under Order 32 Rule 3 of the C. P. Code is sufficient by its own weight for setting aside the decree or for declaring the same a nullity. 10. 9. WE are inclined to take the views which appear in the aforesaid reported decisions. We do not think that non service of the notice upon the minors themselves under Order 32 Rule 3 of the C. P. Code is sufficient by its own weight for setting aside the decree or for declaring the same a nullity. 10. IT was next submitted that when the Court Guardian failed to take any steps after his petition for adjournment was rejected on 24/2/75, the Court should have made a fresh appointment of a guardian for the minors, and that the minors were not effectively represented by Advocate Jamini Babu when the suit was called on for hearing. In our opinion the Court had the jurisdiction to proceed with the suit despite Jamini Babu's non appearance. The Court committed no jurisdictional error. In this connection the observations in AIR (32) 1945 Patna 133 may once again be referred to. The decree cannot be assailed only on the ground that the Court Guardian, Jamini Babu, took no steps when the suit was called on for hearing. 11. IF we take the view that whenever a Court Guardian does not appear at the hearing of the suit, it is mandatory for the Court to appoint a new guardian, we would be subscribing to the view that there can never be any ex-parte decree against any minor in any suit. This is a proposition not contemplated by law and is absurd. 12. WHETHER in a given case the Court has acted with material irregularity by not cancelling the appointment of a Court Guardian and making a new appointment depends upon a consideration of many factors involving circumstances (if any) indicating collusion of the Court Guardian and the nature of the transaction giving rise to the suit. There is nothing on record to indicate that there was any collusion of the kind referred to. As far as the transaction in the suit is concerned the suit was founded upon an alleged contract between the plaintiff on one side and Pran Ballav Saha and his wife on the other. One would expect the most effective defense (if there was any), in the suit from the side of Pran Ballav Saha. As far as the transaction in the suit is concerned the suit was founded upon an alleged contract between the plaintiff on one side and Pran Ballav Saha and his wife on the other. One would expect the most effective defense (if there was any), in the suit from the side of Pran Ballav Saha. But Pran Bllav Saha did not appear at the hearing of the suit either by himself or through his lawyer, Jamini Babu to put up any defence in the suit. Be that as it may, we are not going into the merits of any defence that might be set up by the minors at the trial. We only point out that we dot find sufficient grounds for holding that the Court committed any material irregularity or jurisdictional error by proceeding ex-parte. 13. EVEN if it is conceded that the finding in the earlier Section 47 proceeding could not operate as resjudicata on the ground that the minors were not parties to that proceeding through their Court appointed guardian Advocate Jamini Babu (whose appointment was never cancelled), we are reluctant to set aside the impugned order for reasons stated hereinbefore. As the ex parte decree does not appear to have been tainted either with any jurisdictional error or with any material irregularity, we are not disposed to interfere with the impugned order dismissing the petitioners' application under Section 47 of the C.P. Code. This revisional application stands dismissed. We make no order as to costs.