Nachiappa Chetty minor by his Guardian N.V.E. Chinna Nachiappa Chetty vs Chinnaiah Ambalam and Others

Srinivasa Aiyangar, J.—I confess that my mind was wavering in the course of the argument in this case. Bat I have come to the conclusion

that an opportunity should be given to the lower Court to re-consider its decision. The facts are somewhat peculiar. The application made to the

lower Court by the present petitioner who is the 4th defendant was for a review of the judgment in a suit filed by the plaintiff, who had been

defeated in a claim enquiry in which it was held that the minor 4th defendant''s predecessor-in-title was entitled to sell certain properties in

execution of a decree The minor was represented in the suit by a Court clerk who was appointed as guardian. It is found that there is no proof of

any negligence On his part, but it is pointed out that before he was appointed as guardian no notice went to the natural'' guardian of the minor or

the person with whom he was living, namely Nachiappa chetty. No doubt Nachiappa Chetty himself was originally proposed as guardian and the

finding is that he declined to receive the process issued to him calling upon him to be the guardian for the minor. Even assuming that he was

unwilling to act as guardian for the minor still I think it was necessary that notice should have gone to him under Clause 4 of Rule 3 of Order

XXXII of the CPC when the appointment of the Court guardian was proposed. He may possibly have been in a position to suggest. Some body

else as guardian and without such a notice to the person with whom the minor was living or to the natural guardian it would be almost impossible

for the Court to come to the conclusion that there was no other person willing to act as guardian, which alone would enable the Court to appoint

an Officer of the Court as guardian. It is said that although the minor was represented by a Pleader appointed by the Court guardian he took no

steps whatsoever to defend the minor''s interest It is impossible to believe that when he had already succeeded in a claim enquiry he had no

defence at all in a suit instituted by the plaintiff for the purpose of practically setting aside that order more especially as the burden will by on the

plaintiff to show that he was entitled to the property and not the judgment-debtor of the minor. In these circumstances it is difficult to say that the

minor was not prejudiced by the want of notice to the person with whom he was living namely Nachiappa Chetty My attention was drawn by the

learned Pleader for the respondents to the decision of the Privy Council in Waiian v. lianke Rehari Pershad Singh 30 I.A. 182 : 5 Bom. L.R. 822 :

8 P.C.J. 512, That was distinguished in the case of Bhagwan Dayal v. Parana. Sukh Dass 27 Ind. Cas. 623, to which my attention was drawn by

the learned Pleader for the petitioner. I think the distinction drawn in the case of Bhagwan Dayal v. Param Sukh Das, 27 Ind. Cas. 623 : 13 A.L.J.

179, is correct and the present case is practically on all fours with the case of Bhagwan Dayal v. Param Sukh Dass 27 Ind. Cas. 623 : 13 A.L.J.

179, The learned Judge in the Court below has misdirected himself by thinking that no such notice was necessary because the guardian was

appointed under Rule 4. But Rule 4 and the other rules as to the person to be appointed as guardian must be read with the provisions of Rule 3,

which provides for the applications to be made for the appointment of a guardian. Before a person can be appointed as guardian I think it is

necessary that the provisions of Rule 3 should be complied with. In this view I think the proper order to make is to remit the application for review

to the lower Court in order that it may consider the application afresh in the light of the observations above made. Costs of this petition will be

provided for by the lower Court in the final order.

Chinna Nachiappa Chetty is appointed guardian of the minor for the purpose of these proceedings.