Mangal Singh and others vs Mathura Dass

P.C. Pandit, J.—In 1964, Dharma alias Ghona, by means of a registered sale-deed, sold his agricultural land to Mangal Singh and six others including Khida Singh, Ruldu Singh and Nauhar Singh. None of the vendees was shown as a minor in the said deed. Mathra Dass, alleging himself to be a co-sharer of Dharma, brought a suit for possession of the said land by pre-emption. It was contested by the vendues, but no plea was raised that any of the vendees was a minor. The suit was decreed by the trial Court on 2nd May, 1966. This decree was confirmed by the lower appellate Court on 10th of August, 1966, and then by this Court on 10th of March, 1967. At no stage was an objection taken by the vendees that any of them was a minor or that the decree passed was bad on that account.

Mathra Dass then filed an application for the execution of the decree made in his favour. Khida Singh, Ruldu Singh and Nauhar Singh raised an objection before the executing Court to the effect that they were minors and the decree had been passed against them without the appointment of any guardian-ad-litem to represent them in the suit or at the appellate stage. The decree thus passed against them was null and void and could not be executed.

The decree-holder contested the objection petition, as a result of which a number of issues were framed by the executing Court.

After the parties had led their evidence, the counsel for the decree-holder made a statement admitting the minority of the above mentioned three vendees and praying that the decree passed against them be set aside and the original suit, on the basis of which the decree in question had been passed should be revived. The counsel for the minors stated that they had no objection to that course being adopted. On 21st of August, 1967, the executing Court accordingly set aside the decree passed against the minors on 2nd of May, 1966, and ordered the revival of the original suit filed against the vendees.

Against this decision, the vendees went in appeal before the learned Additional District Judge, Bhatinda. The learned Judge came to the conclusion that the order of the executing Court restoring the suit to its original number fell within the provisions of section 151, Code of Civil Procedure, and was, consequently, not appealable. He, therefore, held the appeal to be incompetent and dismissed it.

Against this, the vendees filed an Execution Second Appeal No. 51 of 1968 in this Court. It came up for hearing before B.R. Tuli J. on 24th September, 1968. It was conceded before the learned Judge by the counsel for the vendees that the appeal was not competent and at his request, it was treated as a Revision. The learned Judge was of the view that the decree, which was being executed by the trial Court, was the one which was passed by this Court on 10th March, 1967. The executing Court had, therefore, no jurisdiction to set it aside. There was no point in its reversing the decree dated 2nd May, 1966, because it had merged in the decree passed by this Court and was therefore, not operative. According to him, the order passed by the executing Court on 2lst August, 1967, was without jurisdiction. The revision petition was, consequently, accepted and the order of the executing Court was set aside. It was, however, made clear by the learned Judge that it would be open to the parties to take such proceedings in the matter as might be permitted by law.

Thereafter, Mathra Dass filed the present application (Civil Miscellaneous No. 2668/C of 1968) in this Court on 11th of October, 1968, praying that the original suit instituted by him might be revived from the stage of the issue of notice to the vendees after granting permission to him to implead the minors through their guardians.

This application has been placed before me, because the pre-emption decree granted in favour of Mathra Dass had been confirmed by me in second appeal on 10th of March, 1967.

It is conceded by the learned counsel for both the parties that the original decree passed in the suit for pre-emption was a nullity, inasmuch as it had been passed against the minors who had not been properly represented before the Court.

Now the question arises as to what would be the remedy of the plaintiff pre-emptor ?

It has to be borne in mind that the objection regarding the minority of the defendants was not raised at any stage of the proceedings in the original suit, the same having been mentioned only at the time of the execution of the decree. It has also to be noted that none of the vendees was shown as a minor in the registered sale-deed, which was the subject matter of the pre-emption suit. It is also noteworthy that before the executing Court, the counsel for the decree-holder admitted that the decree passed against the minors is set aside and the original suit, on the basis of which the decree in question had been made, be revived. This suggestion was accepted by the counsel appearing for the minors, with the result that the order dated 21st of August, 1967, was passed by the executing Court.

This order was set aside by Tuli J. solely on the ground that the decree made by the trial Court on 2nd of May, 1966, had merged in the decree passed by this Court on 10th March, 1967, and, consequently, there was no point in reversing the decree dated 2nd May, 1966, and the executing Court had no jurisdiction to set aside the decree of this Court dated 10 of March, 1967. It could be argued with some force that Tuli J. was of the view that it was this Court alone which could set asi 1e the decree dated 10th March, 1967, and order the revival of the original suit from the stage of the issue of notices to the vendees, after granting permission to implead the minor''s through their guardians.

As regards the decided cases, there is ample authority for the proposition that in such a situation, it is open to this Court in its inherent jurisdiction to set aside the decree dated 10th March, 1967, which was admittedly a nullity, and restore the original suit filed by the plaintiff against the vendees and revive it from the stage of the issue of notices to the vendees after giving permission to implead the minors through their guardians.

A Division Bench consisting of Sulaiman and King JJ. in Talib Ali Shah Vs. Piarey Lal and Another held as under:

Subsequent to the discovery that the minor has not been properly represented by a duly appointed guardian it is open to the Court in the exercise of its inherent power u/s 151 to restore the case to its original number on the file and proceed with it after duly appointing a guardian. The restoration of the case and the appointment of a new guardian cannot be held to be tantamount to the addition of a new party to the suit. The appointment of a guardian ad litem must always be some time after the institution of the suit and the suit must be deemed to have been instituted against the minor on the date when it was filed, even though on that date the guardian ad litem was not or could not have been appointed.

Similarly, Rankin C.J. and Ghose J. in Samaresh Chakravarti and Another Vs. Jalpaiguri Banking and Trading Corporation Ltd., observed-

A suit against a person was decreed ex parte. Subsequently the plaintiff was informed that on the date of the suit the person was lunatic and that fact was confirmed by proceedings in lunacy and declaration to that effect. The defendant then died and the decree was sought to be executed against the legal representatives by an affidavit set up an objection that the decree was a nullity on account of the defendant''s lunacy. The plaintiff thereupon took out a summons to the effect that the decree should be set aside and the suit after certain amendments in the plaint should be reconstituted as a suit against the legal representatives.

Held that the order allowing such summons and amendment could be made.

In Abdul Qayum Shah v. Mohd. Sadiq son of Fazal Rahman AIR 1949 Pesh. 9, it was held:

Where a Court cancels a decree standing against the plaintiff on the ground that it was a nullity having been obtained against him when he was a minor and was not duly represented by a guardian ad litem in the suit, it can under its inherent powers, in order to do justice to the parties aggrieved by the cancellation of the decree, revive the original suit in which the said decree was passed and put the minor to the same position in which he was on the date on which it was filed.

A Division Bench of the Kerala High Court in Mary Threys Fernando v. C.I. Philip AIR 1958 Ker. 175, observed-

Where there has been a fraud on the part of the plaintiff, or where there has been a mistake on the part of the Court and the minor defendant is not properly represented and a decree is obtained against him and in the subsequent suit by the minor, this decree is set aside on the ground of fraud or mistake, the original suit is revived and the plaintiff in that suit is entitled to fresh disposal of that suit, unless it is further found in the subsequent suit that his claim was false.

Whether, in circumstance like the present, the decree is set aside as against the minor or whether it is merely declared null and void so far as he is concerned, the result is the same. In either case, the suit in which the decree was passed remains undecided so far as that person is concerned and there can be no question but that the plaintiff therein should be allowed to prosecute it to a finish.

The effect of the fact that the minor was not properly represented is not that he was never a party to the suit. A suit against a minor is instituted on the day it is filed, and not on the day on which a guardian is appointed for him which must necessarily be some time later. The restoration of the prior suit, and its continuance after the appointment of a proper guardian if the party concerned still happens to be a minor, is not tantamount to the addition of a new party to the suit.

Learned counsel for the vendees when asked as to what would be the remedy of the plaintiff pre-emptor in the instant case, submitted that he should have moved the trial Court for the revival of the original suit. In saying so, he has overlooked the fact that the trial Court has no jurisdiction to revive the suit unless the original decree is set aside and that can be done not by it. but by this Court, because the decree of the trial Court had merged into the decree passed by this Court on 10th March, 1967. It is only alter the original decree is set aside that a direction can be given that the original suit should be revived from the stage of the issue of notices to the vendees including the minor. This, as 1 have already said, can be done by this Court under its inherent powers mentioned in section 151, Code of Civil Procedure.

Learned counsel relied on a decision of Spencer J. in Arumuga Goundan and Others Vs. Periavanjiappa Goundan and Others, where it was held-

If a minor is not properly represented before the Court, a decree passed against him is in effect a nullity and the Court cannot set aside the ex-parte order and re-open the suit under Order 9, rule 13. The Court possesses no inherent power to restore a suit once disposed of and to add parties to it, who were not represented at the original trial.

In the first place, this authority is not directly in point. Secondly, it was dissented from in Talib Ali Shah''s case1 and in Mary Threys Fernando''s case.

Learned counsel also referred to the decision of Sen J. in Bimal Kumar Hui and Another Vs. Sm. Purnima Dasi and Another, it was observed-

Pre-emption proceedings u/s 26-F are in the nature of suits. Hence if the vendee be a minor, the appointment of a guardian ad litem is mandatory and an order passed in a proceeding u/s 26-F against a minor where no guardian is appointed is a nullity.

And where in a suit by the minor the order in the pre-emption proceedings is declared null and void and the pre-emptor files an appeal the Appellate Court has no jurisdiction to direct the lower Court to revive the pre-emption proceedings after giving an opportunity to the appellant of getting the minor properly represented by a guardian.

In the first place, this ruling has no application to the facts of the present case. Secondly, the learned Judge did not disapprove of the law laid down in Monmohini Das Purkayastha and Others Vs. Behari Shaha and Others, but held that it had no application to the facts of Bimar Kumar Hui''s case, by observing-

In the first case it was decided that where in a subsequent suit a decree passed against a minor is declared null and void on the ground that the minor was not represented by a guardian ad litem, the Court which decided the first suit has jurisdiction to revive it as against the minors. This decision was given in an appeal from a decree passed by the Court which had decided the present suit after reviving the fresh suit.

In view of what I have said above, I would accept this application, set aside the decree passed by this Court on 10th March, 1967 being admittedly a nullity, restore the original pre-emption suit filed by Mathra Dass and revive it from the stage of issuing of notices to the vendees after granting permission to the pre-emptor to implead the minors through their guardians. The parties are, however, left to bear their own costs in this Court.