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PATNA HIGH COURT
Narayan and B.P.Jamuar JJ.
Krishna Behari Lall
Versus
Kedar Nath Ojha
Appeal from Original Decree No. 457 of 1947 ;
Decided On : FEBRUARY 19, 1954
CIVIL PROCEDURE CODE - Order 32, Rule 4(2) - Appointment of Guardian for Suit - Representation of Minor - Irregularity - Validity of Decree and Sale - Bihar Money-lenders Act (1938), Sec. 16(1) - Valuation of Property for Sale - Jurisdiction of Court.
Fact of the Case:
Plaintiff, the son of Deosaran Lal, filed a suit to set aside a mortgage decree and sale held in execution of the decree. Deosaran Lal had executed a mortgage bond in favor of the defendants-first party in 1923 and died in 1933. The plaintiff alleged that the mortgage was fraudulent and that the proceedings in connection with the suit and execution were also fraudulent. The defendants contested the suit, claiming that the mortgage was genuine and that the proceedings were conducted properly.
Finding of the Court:
The court found that the appointment of Maulavi Muhammad Majeed as the guardian ad-litem for the plaintiff in the mortgage suit was valid, despite the fact that the mother of the plaintiff, who was the certificated guardian, was not specifically described as such in the plaint or processes served on her. The court held that the provisions of Order 32, Rule 4(2) of the Civil Procedure Code were complied with, as the mother, after service of notice, did not appear before the court. The court also found that the sale held in execution of the mortgage decree was not without jurisdiction, even though the value of the land was not estimated according to the provisions of Section 16(1) of the Bihar Money-lenders Act, 1938, which came into force after the order for the issue of sale proclamation had been passed. The court held that the court executing the decree had jurisdiction to act according to the provisions of Order 21, Rule 66 of the Civil Procedure Code, which were followed in this case.
Issues: 1. Whether the appointment of Maulavi Muhammad Majeed as the guardian ad-litem for the plaintiff in the mortgage suit was valid. 2. Whether the sale held in execution of the mortgage decree was without jurisdiction due to non-compliance with Section 16(1) of the Bihar Money-lenders Act, 1938.
Ratio Decidendi: 1. The court held that the appointment of Maulavi Muhammad Majeed as the guardian ad-litem for the plaintiff in the mortgage suit was valid, despite the fact that the mother of the plaintiff, who was the certificated guardian, was not specifically described as such in the plaint or processes served on her. The court held that the provisions of Order 32, Rule 4(2) of the Civil Procedure Code were complied with, as the mother, after service of notice, did not appear before the court. The court relied on the amended version of Sub-rule (4) of Rule 4, which provides that where the person whom the court proposes to appoint as guardian for the suit fails to express consent to be so appointed, the court may appoint one of its officers as the guardian. 2. The court held that the sale held in execution of the mortgage decree was not without jurisdiction, even though the value of the land was not estimated according to the provisions of Section 16(1) of the Bihar Money-lenders Act, 1938, which came into force after the order for the issue of sale proclamation had been passed. The court held that the court executing the decree had jurisdiction to act according to the provisions of Order 21, Rule 66 of the Civil Procedure Code, which were followed in this case. The court noted that the value of the property had been estimated and notified in the sale proclamation.
Final Decision: The court dismissed the plaintiff's appeal, holding that the appointment of the guardian ad-litem was valid, the sale held in execution of the mortgage decree was not without jurisdiction, and the plaintiff had failed to establish that the guardian ad-litem had acted in collusion with the defendants or had acted negligently.
Narayan, J.
1. The plaintiff is the appellant, and the appeal arises out of a suit to set aside a mortgage decree and the sale held in execution of the decree. The plaintiff is the son of one Ragho Lal and the grandson of one Deosaran Lal. Deosaran Lal had executed a simple mortgage bond for a consideration of Rs. 697/- in favour of the defendants-first party on 29th April 1923, and he died in 1333 Fasli leaving surviving him his son Ragho Lal and his grandson Krishna Behari Lal, the present plaintiff. Ragho Lal had become lunatic, and his wife, Ramdhari Kuer, had been appointed his guardian. Ragho Lal left his home in the year 1933, and since then nothing has been heard about him, and he has been taken as dead.
2. The mortgage was with regard to 9 bighas, 19 kathas 1 dhur of land of khata No. 1, and the suit to enforce this mortgage was instituted after the death of Deosaran Lal. On the 16th May 1936, a preliminary mortgage decree was passed in favour of the defendants-first party for realisation by sale of Rs. 1,245-7-9, This decree was made final on 21st August 1937, and it was executed in the year 1938. The mortgaged property was sold in execution of the mortgage decree on 12th September 1949, for Rs. 1,486-5-9, and was purchased by the decree-holders, the defendants-first party. After their purchase the defendants-first party redeemed two rehans with regard to the property, the total value of which is said to be Rs. 6,935/-.
3. The plaintiff has alleged that Deosaran Lal was a ganja smoker and a man of immoral habits, and that whatever money came into his hands was spent for immoral purposes. He has further alleged that Deosaran had never any genuine need for borrowing loan, and that, in the mortgage bond in question, only fictitious necessities were mentioned. The proceedings in connection with the suit as well as the execution proceeding have all been challenged by the plaintiff as fraudulent, and Maulavi Muhammad Majeed, a pleader practising at Motihari, who was appointed as the guardian-ad-litem of the plaintiff (sic.-- defendant?) in the mortgage suit, is said to have acted in collusion with the plaintiffs of that suit, that is, the present defendants-first party. The plaintiff has prayed that the decree and the sale be declared fraudulent and illegal, and that the defendants first party be directed to give up possession of the lands redeemed by them on receiving from him the amounts that they had paid for the redemption of the rehan deeds.
4. Most of the defendants first party contested the suit, and they had all filed a joint written statement. It was contended by them that Deosaran Lal was not a man of immoral habits and was not addicted to intoxicants, that the amount for which the mortgage came to be executed had been borrowed by him, for legal necessities, and that there was no fraud committed in connection with any of the proceedings. It was further contended that the defendants had purchased the suit lands for a very proper price and had paid encumbrances over the property amounting to Rs. 7,702/-. Possession had been delivered to the defendants first party of the property sold on 17th May 1940, and, according to the defendants allegation, they have been in possession of the property ever since possession was delivered to them under the orders of the Court.
5. The learned Subordinate Judge has dismissed the suit after overruling all the contentions raised on behalf of the plaintiff.
6. The plaintiff has consequently come up in appeal against the decision of the learned Subordinate Judge, and Mr. K.C. Sanyal, who has argued this appeal on behalf of the appellant, has pressed practically all the contentions urged in the Court below except the contention that Deosaran Lal was a man of immoral habits and was addicted to ganja.
7. This appeal is absolutely without any merit, &, therefore, I think it would be more convenient if I dispose of first the questions of law raised by Mr. K.C. Sanyal on behalf of t
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