Muni Lal Agarwal vs Balbhadar Proshad and Another

Manohar Lall, J.—This is an appeal by the ex-guardian, who is aggrieved by the execution of an order passed by the District Judge under the Guardians and Wards Act in the following circumstances.

The appellant was appointed as guardian of a minor in the year 1933 and was removed some years later. Upon his removal, another guardian has been appointed in his place. As the result of certain proceedings, the Court ordered on 19th June 1937 that the ex-guardian had no right to spend the sum of Rs. 849-80 in conducting a certain suit in which the minor was only a co-plaintiff. He accordingly directed him to refund that amount by 30th June 1937. The Court refused to re-consider this order at the instance of the ex-guardian and on 22nd November 1937 again ordered that the ex-guardian should deposit this sum on or before 25th December 1937. Against this decision the appellant came in revision to this Court in Civil Revision No. 612 of 1937 which was disposed of by Dhavle, J. on 19th January 1938. That case is reported in Munnilal Vs. Mukhteshwar Prasad, . The argument before the High Court was that the Court had no jurisdiction to call upon the ex-guardian to pay the sum in Court. That argument was rejected and it was held that the Court had power to scrutinize the accounts submitted by a guardian and find out what the real balance in his hand was and direct him to deposit it in Court. It was also pointed out that if by reason of the removal of the guardian it were to be held that Section 34 had ceased to apply, Section 41(3) would seem to give the Court much the same power, the power even to deal with him u/s 45 if so required. On 22nd April 1938, the Court by Order No. 345 observed that the ex-guardian was asked to pay Rs. 849-8-0 and he was unsuccessful in the High Court and permitted the new guardian to ask the ex-guardian to pay the sum within one month from that date failing which a suit would have to be instituted against him.

The new guardian had also reported that the ex-guardian had caused other losses to the estate of the minor. The Court was not satisfied with the explanation of the ex-guardian and by the same order on 22nd April 1938 it was ordered: "The ex-guardian must pay Rs. 1661-10-3 within one month from this date. His explanations are unacceptable."

The ex-guardian tried to re-open this order by putting in a petition dated 20th August 1938/1st November 1938 in which he prayed for further opportunity of being re-heard on the point of his liability for the payment of Rs. 849-8-0 and Rupees 1661-10-3, but the Court rejected his prayer and allowed him a final opportunity for the payment of the amounts by 4th January 1939 failing which the new guardian was directed to take necessary steps to realise the amounts. The ex-guardian, as was to be expected from the nature of his conduct in these proceedings, did not pay these amounts whereupon the Court ordered that the present guardian should take forthwith necessary legal stepts to realise these amounts. On 10th March 1939, the Court considered the prayer of the new guardian and passed the following order:

Heard the pleader and seen Muhammad Abdul Rab Vs. Khodaija Bibi, . The order of this Court is clearly executable against the ex-guardian. Permission is therefore given to the present guardian Babu Balbhadfra Prasad, to execute against the ex-guardian the order of this Court, dated 4th January 1939, for Rs. 1661-10-3 and Rs. 849-8-0.

In pursuance of this order, the new guardian started an execution case in the Court of the learned District Judge of Bhagalpur which was numbered as Execution Case No. 1 of 1939. In that case a notice under Order 21, Rule 22, Civil P.C., was ordered to be issued. The ex-guardian appeared as a judgment-debtor and filed an objection showing cause why execution should not proceed against him. His main objection was that such an order was not executable and that the new guardian should be directed to file a regular suit against the ex-guardian where he would be able to show that he was not liable to pay either the whole or any part of the amount which is sought, to be realised from him. The Court, however, overruled this contention. With regard to Rs. 849-8-0 he observed that the ex-guardian had appealed to the Hon''ble High Court, bat his appeal was unsuccessful. With regard to Rs. 1661-10-3 he pointed out that the ex-guardian did not take any chance with regard to this sum by moving the High Court, and that it was not open to the ex-guardian to re-agitate the matter over again, and that he could not be: allowed to do so at the execution stage. But he observed:

It is true that some of the items comprising Rs. 1661-10-3 are of such a nature that if a regular suit had been filed to realise them the Court trying the suit might not have given a full decree for the same, but I am afraid I cannot re-open the matter after all that has taken place as stated above. The explanation submitted by the ex-guardian was considered and it was found unsatisfactory. The proper course for him was to appeal against that order. Having failed to do so I do not think he can, at the execution stage, ask the execution Court to go into the question again.

Hence the appeal to this Court. It will be noticed that the real point for determination in this case is whether the Court below adopted a proper procedure which is justified by the Guardians and Wards Act. Having considered the matter carefully I am of opinion that the order of 10th March 1939, cannot be executed, but it is open to the learned District Judge to proceed u/s 45, Guardians and Wards Act, or direct the institution of a regular suit against the ex-guardian so that the amount which is ultimately found to be realisable from him may be realised from the properties given in security under a security bond which, we are informed, had been executed by the appellant in favour of the Court.

It is to be observed that there is no provision in the Guardians and Wards Act which authorises the execution of an order passed by the District Judge in a proceeding under the Guardians and Wards Act, But there are certain sections which provide ample means enabling the Court to see that his orders are obeyed by the guardian and the ex-guardian. The only relevant provisions which apply to this case are these. Section 34(a) authorises the Court to require the guardian to give a bond to the Judge of the Court to enure for the benefit of the Judge for the time being, with or without sureties, engaging duly to account for what he may receive in respect of the property of the ward. Section 41 deals with the situation when the authority of the guardian had ceased by his death, removal or discharge. Sub-clause (3) provides that when for any cause the powers of a guardian cease, the Court may require him....to deliver as it directs any property in his possession or control belonging to the ward.... Section 45 then provides by Sub-section (1), Sub-clause (c) that if a person who has ceased to be a guardian....fails to deliver any property....in compliance with a requisition u/s 41, Sub-section (3), the person....shall be liable, by the order of the Court, to fine not exceeding one hundred rupees, and in case of recusancy to further fine not exceeding ten rupees for each day after the first during which the default continues, and not exceeding five hundred rupees in the aggregate, and to detention in the civil jail until he undertakes to....pay the balance or to deliver the property....as the case may be. Having regard to the scheme of the Act and specially to the provisions which I have just noticed, it seems to me that the Court has ample power to enforce obedience of his orders by proceeding u/s 45. The Act nowhere provides that an order may be executed as if it was a decree or an executable order of the civil Court within the meaning of Section 36, Civil Procedure Code.

Reliance has been placed upon a number of cases which I proceed to examine in order to show that the view which I have taken is the correct view.

The leading Calcutta case is the case in Abdul Hasim v. Maleka Khatun AIR 1919 Cal. 833 which considered the earlier Calcutta case in Naba Bepari v. Sheikh Muhammad (''01) 5 C.W.N. 207. It was decided by the Division Bench of the Calcutta High Court that the Court has power u/s 41(3), Guardians and Wards Act, to direct a guardian on the termination of his guardianship to deliver any property (which includes money) belonging to the ward in his possession and that if a guardian actually applies the balance in his hands for the necessities or benefit of the minor he cannot be called upon to pay such money as "property of the minor in his possession" and be detained in jail for non-payment merely because there was no permission to spend the money in that way. It was also pointed out at p. 47 that although the Court below when removing the guardian acted within its jurisdiction in enquiring into the question whether any portion of the proceeds of the sale sanctioned by it was in the bands of the guardian which he may be called upon to pay, there ought to have been a full enquiry into the matter more especially as the learned Judge directed the guardian to be detained in jail for the nonpayment of the money, and he directed that the case should go back to the Court below in order that it may make a full enquiry as to whether the balance of the proceeds of the sale of the two houses, namely, Rs. 1475 was in the hands of the appellant, or had been applied for the necessity or the benefit of the minor, and then observed as follows:

If it is found that any portion of the said balance (Rs. 1475) was not spent for the minor the Court may make an order u/s 41(3) for payment of such sum into Court, and on the appellant''s failing to pay such sum, the Court may proceed under the provisions of Section 45, if it considers that the appellant should again be detained in jail and drew the attention of the Court that it should take into consideration the fact that the present guardian had already been authorised to sue the late guardian upon his security bond.

This case was expressly followed in Heeralall Chakraburtty Vs. Sreemutty Mansha Moyee Debi, where the case in Naba Bepari v. Sheikh Muhammad (''01) 5 C.W.N. 207 was distinguished.

Can such an order be executed? In Parvathammal Vs. Chokkalinga Chetty, although the facts were slightly different it was held by a Division Bench that an order purporting to be made under the Guardians and Wards Act cannot be enforced as a decree passed in a suit and that Section 36, Civil P.C., has no application. The order in that case was an order u/s 34 directing the guardian to pay a certain sum out of the ward''s estate for the marriage expenses of a person who was dependent upon the ward.

But it was argued that the case in Muhammad Abdul Rab Vs. Khodaija Bibi, is a direct authority to the contrary. This case was expressly relied on by the learned District Judge in the order of 10th March 1939. It appears, however, from the judgment of Sulaiman, J. (as he then was) that the ex-guardian had agreed to hand over the properties which he had exchanged, and, therefore, the Courts had no difficulty to hold that the order dated 28th April 1921, which was passed to set aside the deed of exchange and ordering Abdul Rab to return the property, was an order passed on the basis of consent and, therefore, it was no longer open to Abdul Rab to contend that that order was passed without jurisdiction. Moreover, delivery of possession had actually been taken in execution. The learned Judge then proceeded to observe:

An order passed against the guardian is certainly executable. A guardian is an officer of the Court and is responsible to the Court which appointed him as guardian for due management of the property of the ward and for restoration of any property to the ward that remains in his possession. Orders against him can be executed in proceedings under the Guardians and Wards Act.

It seems to me that this observation must be confined to the particular facts of that case where it expressly states that the orders can be executed. "In proceedings under the Guardians and Wards Act" which I take to mean in accordance with the provisions of the Guardians and Wards Act. The only provision which I find under the Guardians and Wards Act for the execution of an order passed in the course of the proceedings is by having recourse to the penalty provision of which Section 45 is the type.

It has been held in a number of cases that where a guardian disobeys the order of the Court he can be called upon to produce the money which he would have in his possession if be had followed the directions of the Court, and also that the Court has jurisdiction to investigate into the accounts exhibited by a guardian, to amend that by striking out objectionable items and direct the guardian to pay the balance due on a true and just account, and on his failure to pay the balance as found by the Court, it has jurisdiction to proceed u/s 45: see the case in Ramanujulu Reddy Vs. Rangiah Reddiar, and Muhammad Fariduddin Ahmad Vs. Ahmad Abdul Wahab, where this Court dissented from Jagannath Panja v. Mahesh Chandra AIR 1916 Cal. 459.

From a review of the above authorities it is clear that this Court has adopted the view of those Calcutta cases which hold that a guardian or an ex-guardian can be directed to bring in the money which is due from him upon a proper scrutiny of account and not only Bo much of the money as he admits to have been due from him, and in case of his failure to do so he can be proceeded against u/s 45 to enforce that order. I think this is the correct practice which should be followed. I am also of the opinion that such an order cannot be executed as if it is a decree of the civil Court. The order under appeal, therefore, must be set aside.

The question now arises what should be the nature of the direction that should be given in this case. I think with regard to Rs. 849-8-0 the question of the liability of the appellant is conclusive as the matter was determined by this Court and cannot be agitated over again. With regard to Rupees 1661-10-3 the matter does not appear to be so clear because the learned Judge himself states that some of the items comprising this total are of such a nature that if a regular suit had been filed the Court might not give a full decree for the same, and unless the Court decides to direct the new guardian to file a regular civil suit it is desirable that the Court should investigate this matter thoroughly before proceeding u/s 45.

In my opinion the Court should, on receiving back the papers, consider whether action should be taken u/s 45 with regard to Rs. 849-8-0 only or with regard to both the amounts, or whether the new guardian should be directed to proceed by a regular suit to realise the amounts found due from the guardian and from the properties given in security bond. But it should be made clear that if the Court wishes to proceed u/s 45 with regard to the second item also then it must show by its order as a result of a thorough enquiry that the ex-guardian is liable to pay this amount or a part thereof so clearly as to bring him within the provision of Section 45. The result is that the appeal is allowed and the order of the Court below is set aside. But in the circumstances each party will bear his own costs.

Harries, C.J.

I agree.