AI Structured Summary
Not yet generated for this judgment
Judgment
Mohapatra, J.—This appeal arises out of an order u/s 47, CPC passed in the execution proceedings which arose out of a decree obtained in original Suit No. 31 of 1947, wherein the Plaintiff brought a suit for declaration that Defendant No. 3, a minor, was not the adopted son of the deceased husband of Defendant No. 1. Defendant No. 2 was made a party as the natural father of Defendant 3. The decree was in terms of a compromise where the adoption was accepted but the terms of the compromise ran to the effect that certain of the items "were agreed by Defendants 1 and 3 to be given and Defendants 1 and 3 have hereby given absolutely". Objection having been raised before the execution Court to the effect that the decree to that extent was not executable, the executing Court passed an order rejecting the objection petition and, allowing the decree-holder to proceed with the execution. The present appeal has been filed against that order.
By the learned Counsel appearing on behalf of the Respondents, a preliminary objection is taken that the appeal is not competent inasmuch as Defendant No. 3, who is a minor, has not been properly represented in the appeal by the guardian, who was acting as the guardian-ad-litem in the suit and the execution proceedings. We find from the decree that as a matter of fact the minor Defendant No. 3 was represented by Defendant No. 1 as the guardian-ad-litem. In the execution proceedings also the minor Defendant No. 3 was represented by Defendant No. 1. The present appeal has been filed by Defendant No. 2 on his own behalf and also as representative of minor Defendant who was judgment-debtor No. 3. The objection is a valid objection and must prevail in view of the provisions of Order XXXII, Rule 8(5), which 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 a decree.
The language is perfectly clear and is supported by several authorities including the cases reported in Gulab Chand and Others Vs. Mt. Kishori Kuer, and AIR 1944 78 (Nagpur) . There is nothing before us to show that Defendant No. 1 has retired or has been removed from the guardianship it appears, therefore, that the present appeal, not having been filed by the proper guardian, that is, Defendant No. 1 or judgment-debtor No. 1, is not competent.
It has been contended by the learned Counsel on behalf of the Appellants that the appeal can be said to be competent as it has been filed b, one of the judgment-debtors, that is, Defendant No. 2 on his own behalf. Such an appeal filed by one of the Judgment-debtors would be competent provided the provisions of Order XLI, Rule 4, Code of Civil Procedure, are satisfied. The language of Order XLI, Rule 4 runs thus:
Where there are more Plaintiffs or more Defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the Plaintiffs or to all the Defendants anyone of the Plaintiffs or of the Defendants may appeal from the whole decree, and thereupon the appellate Court may reverse or vary he decree in favour of all the Plaintiffs or Defendants, as the case may be. The appeal could be found to be competent only if document No. 2 was only interested in the decree along with other Defendants. On the contrary the language of the compromise is perfectly clear to sow that it was only the 1st and the 3rd Defendants who "agreed to give and have hereby given absolutely" the properties, in dispute. As such, the Defendant No. 2 had absolutely no interest in the properties which were given or were agreed to be given to he Plaintiffs.
It has to be made clear here that in fact the Defendant No. 2, under the terms of the compromise stands under no obligation to deliver possession of the properties which were the subject matter of the compromise. As such, the execution proceedings against Defendant No. 2 would not be maintained. The appeal, therefore, fails subject to the above observations.
Narasimham, J.
I agree.