Sadho Sahu vs Sarda Pathak and Others

Wort, J.—The actual point of substance which was raised by the respondents in this appeal was not taken in the Court below in the form in which it was put forward before me. The substance of the point is that Order 32, Rule 3, Sub-rule (4) was not complied with inasmuch as notice to the minor and to the guardian of the minor appointed by the Court was not served upon those persons. The substance, however, of the decision of the Court below was that the proceedings themselves had not been served on a properly constituted guardian; in other words, there was no guardian representing the minor in the former action and who is the plaintiff in this action. Shortly the facts out of which this question arises were these: Sadho Sahu, defendant 1, had undertaken to pay a sum of Rs. 275 to Girdhar Pathak.

This Rs. 275 was left with defendant 1 as the mortgagee to pay it on behalf of defendant 3. An action was ultimately brought by defendant 3 for a declaration that the sum of Rs. 275 had not been paid by defendant 1 to Girdhar Pathak. This action succeeded. Defendant 1 then having this decree against him brought an action against Girdhar''s representatives to claim back the sum which he said he had in fact paid in spite of the decision of the Court to which I have just referred. Now this action by defendant 1 was decreed ex parte. Girdhar had died and the action was brought against Kamla Pathak and his minor brother as persons being in possession of the assets of Girdhar Pathak.

It is as a result of this suit that the action out of which this appeal arises was brought. The substance of the claim was that the action by defendant 1 against Kamla Pathak and his minor brother was fraudulent. It is clear however in spite of what the Subordinate Judge in the Court below has said that there was no fraud. I am surprised at the criticism which the learned Subordinate Judge as the Judge of appeal in this case has uttered against the Judge trying the suit in which the ex parte decree was obtained. He makes a statement which is difficult to understand. He states that:

In this case there is a singular abuse on the part of the Court to decree the suit ex parte against the minor appellant. The order sheet does not show that when the guardian ad litem had filed his nominal written statement, the Court ever cared to look into it.

What authority the Subordinate Judge in the Court of appeal below has got to make a statement of that kind I fail to understand. The Judge who pronounced the ex parte decree appears to have decided the case according to the facts before him and I leave it at that. The point as to fraud is important only in the light of the Full Bench decision of this Court in (Rani) Parygag Kumar Devi and Another Vs. Bhudhar Mal Chaudhury, , that is to say, if the point of substance which is taken by the respondents in this case succeeds, the question is whether in those circumstances the original action with regard to which this case was brought should be tried on its merits or not. If there were irregularities justifying the setting aside of the decree in the original suit that would entitle the parties to have their matter litigated on the merits. If however fraud had been practised it disposes of the suit once for all. Now what is said here is that there was no notice under Order 32, Rule 3, Sub-rule (4).

What happened shortly was this. The notice of the proceedings was served on Kamla Pathak, the major brother. He was Karta of the family, the natural guardian of the minor brother being his mother. In the circumstances it is obvious that the only service that could have been made was on the brother as the mother was a Pardanashin lady. Kamla Pathak made it known to the Court that he was not representing his minor brother as guardian. Thereupon the Court proceeded under Order 32, Rule 4 and appointed a pleader guardian. The pleader guardian on his appointment proceeded to get instructions from the minor. No such instructions were forth-coming.

In consequence of that and in consequence of the fact that Kamla Pathak did not defend the suit the decree as I have indicated already was passed ex parte. Now it has been held in the case of Radhakrishna Gopal Lalji v. Lakshmi Narain AIR 1923 Pat 385 that although a mother, the natural guardian, is given preference under Order 32, yet the appointment of another person does not render the decree passed in such suit a nullity. The question is whether the decision carries the appellant, who is defendant in the action, sufficiently far, because it is said that the formal notice should have been given under Order 32, Rule 3, Sub-rule (4). Now no notice is required under Order 32, Rule 3, Sub-rule (4).

But it is suggested that until Order 32, Rule 3 is complied with Order 32, Rule 4 cannot be relied upon. I put it in that form not because that was the argument of the learned advocate but it was the suggestion made by the learned Advocate on behalf of the appellant.

In other words, that as Order 32, Rule 4 had been acted upon no question arose under Sub-rule (4) of Rule 3. Now it is clear on the authority to which I have referred that a guardianad litem was validly appointed and that he had notice of the proceedings. No question can arise as regards that. The only point that can arise is whether that correct appointment of guardian ad litem should be held to be irregular by reason of the fact that the Court did not go through the formality of giving notice under Clause (4), Rule 3.

Again that argument can only succeed if it could be said that the Court was not satisfied under Order 32, Rule 4, Sub-rule (4) that there was no person fit and willing to act as guardian. It was suggested although this was not the argument of the learned advocate on behalf of the respondents that the Court could not have been satisfied unless a guardian had been appointed under Order 32, Rule 3. Notice was isssued on that person and then they had declared that they were unwilling to act. In my judgment however that argument cannot be supported.

It is clear that no notice is necessary under Order 32, Rule 4 excepting on the person appointed. There is no suggestion that the person actually appointed did not receive notice and therefore the substance of the point comes to this: whether as the Court should have given preference to the natural guardian or given an opportunity to the natural guardian to refuse, the Court''s appointment is vitiated by not giving that preference or giving that opportunity to the natural guardian to refuse. It seems quite clear that so far as this Court is concerned the matter is settled by Radha Krishna Gopal Lalji v. Lakshmi Narayan AIR 1923 Pat 385 to which I have already made reference. That being so, no other point arises. In my judgment therefore the appeal should be allowed with costs and the plaintiff''s action dismissed.