Shiva Sahai Ram vs Sundar Mandal and Others

D.E. Reuben, J.—This is an appeal by the defendants, first party, against a decision of the Subordinate Judge of Purnea, affirming a decision of the Munsif of Purnea. The suit was brought by the two plaintiffs, respondents first party, against the appellants, defendants first party, and Darogi Mandal, defendant second party, who is the elder brother of the plaintiffs, for a declaration that the interest of the plaintiffs in the suit property is unaffected by the sale in execution of the decree in Money Suit No. 758 of 1930 obtained by the defendants, first party, against Darogi Mandal and the two plaintiffs on the basis of a hand note executed by their deceased father, Dhanpat Mandal. In that suit, the plaintiffs, who were then minors were represented by a guardian ad litem, who continued as such till the suit was disposed of on 27th March 1931. The decree was put in execution in the year 1934 when the plaintiffs were still minors. In the execution petition, the minors were impleaded under the guardianship of their elder brother, Darogi, without any steps being taken to discharge the pleader guardian appointed in the suit. The execution sale was held on 5th December 1934, and the property was purchased by the decree-holders, defendants first party of the present suit. An objection under O. 21, R. 90, was filed by Darogi on his own behalf and as guardian of his minor brothers; but it was finally dismissed for the default of Darogi, and the sale was confirmed, and, in due course, the decree-holders auction-purchasers got delivery of possession over the property through the Court. The plaintiffs attained majority, one of them in the year 1938 and the other in the year 1940, and they filed the present suit in the year 1941, challenging the validity of the sale so far as it related to their share in the property on the ground that they were not properly represented in the execution proceedings. They also challenged the reality of the delivery of possession and asserted that they were still in possession, regarding which fact they asked for a declaration. In the alternative, they prayed for recovery of possession. The Courts below have held that the delivery of possession was real and effective, and have given the plaintiffs a decree for recovery of possession to the extent of their share on the finding that the sale is void to that extent by reason of the non-representation of the minors in the execution proceedings. The finding regarding possession is binding upon us and it has not been challenged before us. The only points raised were: firstly, the maintainability of the suit, and secondly, the effect of the representation of the minors in the execution proceedings by their brother instead of by their pleader guardian ad litem. The point of maintainability is really dependent on the other point. It is urged that, in the execution proceeding itself, an objection under O. 21, R. 90, was filed on behalf of the minors by Darogi Mandal on the ground among others that the minors were not properly represented in the execution proceeding, and this objection was decided against the minors, and the sale was confirmed. It is argued that the minors cannot be permitted to raise the point again, and are further precluded from challenging the sale by reason of O. 21 R. 92, Civil P.C. For the minors to be bound by the result of O. 21, R. 90 proceeding, however, it is necessary that they should have been parties to that proceeding; in other words, it is necessary that they should have been properly represented in it. This is the very question which has to be considered for the purposes of the other point mentioned above. I come now to a consideration of the second point. Under O. 32, R. 3, as it now stands, it is clear that a guardian ad litem of a minor defendant appointed for the purpose of a suit continues as such for the purpose of execution proceedings in pursuance of the decree in the suit. Mr. Sarjoo Prasad for the appellants points out, however, that the amendment by which sub-r. (5) was inserted in this rule was made in the year 1937, that is, subsequent to the sale which is challenged in the present suit, and urges that according to the accepted view previous to the amendment the appointment of a guardian ad litem terminated with the passing of the final decree in the suit. He relies for this proposition on Khajeh Salaluddin and Others Vs. Mt. Afzal Begum and Another, . 1 Exactly the opposite view, however, was taken by another Bench of the Calcutta High Court in Brojendra Kishore Roy Choudhury Vs. Sk. Shamserali and Another, , 2 where, referring to the case of Khaja Salauddin, 1 their Lordships said:

In that case the learned Judges relying on certain Observations of Lord Lyndhurst in (1831) 1 R&M. 617s at p. 622 observed that the guardianship of the guard an ad litem appointed during the suit, terminated after the final decree made in the suit. The attention of the learned Judges however was not drawn to the decisions (22 I.A. 44) 4 of the judicial Committee to which we have already referred. Further the observations of Lord Lyndhurst were made in connection with the question of lis pendens.

The view taken in Brojendra Kishore Roy Choudhury Vs. Sk. Shamserali and Another, appears to be in accordance with the Patna view, as it was held by a Bench of this Court as long ago as the year 1921 that O. 32, R.S., Civil P.C., applies to proceedings in execution of a civil Court decree: 6 P.L.J. 171. Next, it is urged by Mr. Sarjoo Prasad that, even if Darogi was not the proper guardian to represent the minors, this was a mere irregularity and would not affect the validity of the execution proceedings, as Darogi in fact appeared and looked after the interests of the minors in the execution proceedings. I do not think that the cases relied upon by him for this contention are on all fours with the case before us. In 35 CrI. L.J. 9, 6 the guardian ad litem of the minor judgment-debtor was his mother, who, unknown to the decree-holder, had died before the filing of the execution petition. Therefore, when the execution petition was filed, there was actually no guardian ad litem appointed by the Court. The judgment debtors wore co-tenants of one holding, and a notice under O. 21, R. 22, addressed to all the co-tenants was in fact issued, and there was nothing to suggest any divergence of interests among them. Also, all the co-tenants were living in one homestead. In these circumstances, their Lordships observed that it would be "a refinement of technicality to say that all the cotenants were not duly notified that the decree was to be executed," and held that the Courts should look at the substance of the transaction to determine whether the minor was sufficiently represented in the execution proceeding. In the view they took of the case, they were of the opinion that O. 21, R. 22, had been sufficiently complied with, and that, at the utmost, there was merely an irregularity which did not affect the validity of the proceedings, as the minor had not suffered substantial injury by reason of the irregularity. In 30 C.W.N. 867 the facts are clearly distinguishable, for, in that case, there was a guardian ad litem appointed in the suit, who was, in that capacity, served with the notices of execution, but he did not appear to have entered appearance. The validity of the proceedings was challenged on the ground that he was the pleader guardian appointed in the suit and was not appointed as such in the execution proceeding and, therefore, there was no proper service of the execution processes in the eye of the law. This was treated by their Lordships as an irregularity, but, on the view which I am inclined to take of O. 82, R. 3, there would be no irregularity at all, for, the pleader guardian ad litem appointed in the suit continued as such for the purpose of the execution proceedings and was rightly served with the notices of execution on behalf of the minor. In 97 I.C. 181, 8 the validity of a civil court sale in execution was challenged on the ground that a minor judgment-debtor was represented in the execution proceedings by his mother as guardian without a formal order of the Court appointing her as the guardian ad litem. Their Lordships did not accept the contention that there was no such formal appointment, relying on the fact that more than twenty five years had expired since the date of the sale, and it was hardly to be expected that all the papers relating to the execution would be preserved for such a long time. They pointed out that no such objection was taken in the execution proceedings, which lasted for nearly two years, and referred to the presumption arising under S. 114, Evidence Act, that judicial and official acts had been regularly performed. On this finding, the remark made by their Lordships that the mere absence of a formal order appointing a guardian ad litem does not render the sale invalid is only an obiter dictum. In making the above observation, their Lordships referred to the case in ILR (80) (Cal) 1021, 9 on which case Mr. Sarjoo Prasad has placed great reliance before us. In that case the mother of certain minor defendants had appeared throughout tie proceedings in the suit as their guardian; the Court admitted the plaint, in which she was described as the guardian, and, in the decree and execution proceedings, the Court also described her as the guardian. In these circumstances, it was held that, although no formal order had been made by the Court appointing him guardian ad litem, "the minors were effectively represented in the suit by their mother and with the sanction of the Court." In other words, the presumption was drawn from the circumstances of the case that the Court has sanctioned the appointment of the mother as the guardian ad litem.

This case was considered in Bachoo Prasad Singh and Others Vs. Gobardhan Das and Others, upon which the Courts below have based their decision decreeing the claim of the plaintiffs and the facts of which case are, in my opinion, on all fours with the case before us. Referring to Walian''s cases, their Lordships said:

Id ILR (30) (Cal) 1021 (9) all the parties had for years acted on the supposition that the mother had been properly appointed and had acted as guard an lawfully and regularly. The proceedings were held not to be bad merely because that understanding proved in fact to be mistaken. In effect, an arrangement had been proposed and carried out for the represent at on of the minor, an arrangement which, if the attention of the Court had been given to it, would have been clearly unobjectionable and would have been approved. But in the case before us, it is not BO; on the face of the record it was apparent that the proposal to appoint Gobardhan to represent the minors was highly objectionable for the obvious reason that there was already a guardian ad litem appointed for the suit, including the execution proceedings also, therefore an order appointing Gobardhan can hardly be supposed to have been made by implication when in the circumstances it could not be made. No doubt it was possible fur the Court to remove the pleader and thereafter to appoint Gobardhan, but the Court at this stage was not asked to remove the pleader. So the condition precedent to Gobardhan being appointed or acting as guardian ad litem did not exist" 40 I.A. 140, 11 which is the next case relied on by Mr. Sarjoo Prasad, is distinguishable on the same ground. In that case, a guardian ad litem had been appointed to represent the minor in the original proceedings, which took place in the local Court of Benares. When, however, the proceedings were transferred to the Court of the Deputy Commissioner, Hazaribagh, for execution, the guardian ad item refused to act as such. In the subsequent proceedings, there was no appearance on behalf of the minor. In these circumstances, it was held that inasmuch as the interests of the infant with regard to the property in dispute were not represented in the execution proceedings, it was open to the mother as natural guardian to appear in the name of the infant to protect the property from sale.

The case in 32 I.A. 2313 has been cited on account of certain observations at page 35:

The Indian Courts have properly exercised a wide discretion in allowing the estate of a deceased debtor to be represented by one member of the family and in refusing to disturb Judicial sales on the mere ground that some members of the family, who were minors, were not made parties to the proceedings, if it appears that there was a debt justly due from the deceased, and no prejudice is shown to the absent minors.

The decision itself, however, helps the respondents rather than the appellants. The questions arose as to whether certain judgment-debtors whose property had been sold in execution of certain mortgage decrees, were properly impleaded in the suits, in which those decrees had been obtained, and whether their interest in the property was affected by the sales in execution of those decrees. One of the judgment-debtors was one Amirbaksh minor, who was impleaded as a defendant under the guardianship of one Alahmawas. This is how their Lordships dealt with the point;

In Suits No. 372 of 1879 and No. 160 of 1876, the Judge seems to have accepted without question the statement on the record that Amirbaksh was legal representative of Nauraoz and Alahmawas was his guardian and never applied his mind to the matter Doubtless he would have done so if the suits had proceeded in the ordinary course, but in the former ease the proceedings were out short by the agreement for reference, and in the latter ease it was in effect a consent decree. It was not, therefore, the case of an erroneous decision, ruling or exercise of discretion of the Judge in a matter in which the Court had jurisdiction. Their Lordships think that the estate of Nauraoz was not represented in law or in fact in either of the suits, and the sale of the property was therefore without jurisdiction and null and void. Nor can they hold that the share of Amirbaksh himself in his father''s estate was bound. In the opinion of their Lordships it is not a mere question of form, but one of substance. In coming to this conclusion their Lordships are quite sensible of the importance of upholding the title of persons who buy under a judicial sale; but in the present case the real purchaser was the judgment-creditor, who must be held to have had notice of all the facts.

In the present case, also, the Court did not apply its mind to the point as to whether Darogi could properly represent the minors, and, as a pleader guardian appointed by the Court was in existence, there can be no presumption that the executing Court would have removed the pleader guardian and appointed Darogi as guardian ad litem in his place.

This brings me to the case in AIR 1940 (Pat) 6210 to which I have already referred above. There, as here, there was a pleader guardian ad litem appointed by the Court, but, in the execution application no reference was made to him, and execution was sought against the minors describing them as under the guardianship of Gobardhan Das, brother of one minor and uncle of the other minors, who was also the managing member of the joint family. In the execution proceedings, Gobardhan Das appeared and took various steps. The property was eventually sold on 5-5-1938, and was knocked down to the decree-holders. An objection was filed under S. 47 and O. 21, R. 90, and it was in these proceedings that the question arose about the validity of the auction sale. Their Lordships held that, in the absence of an order of the Court removing the pleader guardian ad litem and appointing Gobardhan Das as guardian in his place, Gobardhan Das had no authority to represent the minors in the execution proceedings with the consequence that so far as the minors were concerned the provisions of O. 21, R. 22, had not been complied with and the legal conditions necessary for proceeding with the execution did not exist. This is exactly the case here. Darogi could not represent the minors; notice to him was not a compliance with the provisions of O. 21, R. 22; hence, the Court had no jurisdiction to proceed against the minors'' share of the property. The sale held by the Court is, therefore, void as against the share of the minors. An attempt was made by Mr. Sarjoo Prasad to distinguish the case from the present one on the ground that, in that case, the question arose in proceedings under S. 47 and O. 21, R. 90, in the execution case itself, whereas, here, the question has arisen seven years later in a separate proceeding altogether. In this connection, he has referred to certain observations made by Rowland J. in that case in distinguishing the case in 27 I.A. 216.13 That was a case in which the notice had been served on the wrong person as the legal representative of a deceased mortgagor; an objection was taken in those proceedings that the person on whom notice had been served was not the legal representative, which objection was considered by the Court on the merits and was rejected, and the property was thereupon sold. It was a case, therefore, where the Court had applied its mind to the question and had decided it. Whether that decision was right or wrong did not matter, because the Court bad the jurisdiction to decide rightly or wrongly. It was on this ground that their Lordships held that the sale could not be defeated. Here we are concerned with the transaction which is found to be void; mere lapse of time, therefore, will not stand in the way of the plaintiff unless new rights have grown up by reason of that lapse of time which is clearly not the case here. Hence, I do not consider that there is any substance in the distinction sought to be made. On the above grounds, I am of the opinion that the Courts below have rightly held that the sale was void so far as it related to the shares of the minors, and would dismiss this appeal with costs.

Fazl Ali, C.J.

I agree.