( 1 ) THE petitioner who is original respondent No. 1 in the main first appeal and who was original defendant No. 1 in special civil suit No. 37 of 1971 in the court of the learned Civil Judge (Senior Division) Rajkot has requested this court by way of the present application to decide as a preliminary point the question regarding the maintainability of the first appeal. Earlier a Division Bench of this court had directed on 28-2-1982 that this application be heard along with the main appeal. But subsequently a later Division Bench of this court directed that this application be taken up for consideration earlier and the learned advocates of both the sides are agreed to this position and that is how this application reached final hearing before us yesterday.

( 2 ) IN order to appreciate the grievance of the petitioner centering round the maintainability of the first appeal it will be necessary to quickly glance through a few relevant facts leading to the present litigation between the parties. Opponent No. 1 is the original plaintiff on whose behalf special civil suit No. 37 of 1971 was filed in the court of the learned Civil Judge (Senior Division) at Rajkot by his guardian and next friend his adoptive mother Bai Santok as admittedly opponent No. 1 was a minor at the time when the suit was filed. The said suit was filed against the present petitioner who was defendant No. 1 as well as against opponent No. 2 who is since deceased against Opponent No. 3 who is since deceased and who is represented by her heirs opponents Nos. 3/1 to 3/4 opponent No. 4 as well as opponent No. 5 who were defendants Nos. 3 to 5 respectively. Opponent No. 1 had filed the suit through his guardian and adoptive mother for getting partition of property of joint Hindu family allegedly consisting of himself and defendant No. 1 and others and to get his one half share separated and to get accounts of the property and his share of the income and mesne profits on the various allegations contained in the plaint. At this stage we are not concerned with the merits of the controversy. Hence we do not dilate on the same any further. The aforesaid suit was filed on 25-6-1970 in forma pauperis. An application for permission to sue in forma pauperis was moved being civil miscellaneous application No. 269 of 1970 before the trial court which ultimately came to be allowed on 26-4-1971 and opponent No. 1s mother Bai Santok as guardian and next friend of minor plaintiff was permitted to file the suit in forma pauperis and the suit was registered as special civil suit No. 37 of 1971 on 26-4-1971. It appears that during the pendency of the suit opponent No. 1 married on 21-5-1975. That prompted the present petitioner defendant No. 1 as well as original defendants Nos. 2 and 3 to file application ex. 154 on 23-7-1975 requesting the trial court to issue notice under Order 32 Rule 12 C. P. Code to opponent No. 1 who according to the petitioner and other contesting defendants had become major as he had married during the pendency of the suit. The said application was replied to by ex. 155 on 14-8-1975 by opponent No. 1s guardian and next friend Bai Santok. She stated that the plaintiff was still a minor and hence the application filed by the petitioner and other defendants was not maintainable. In view of the aforesaid stand taken by opponent No. 1s guardian and next friend the petitioners learned Advocate in the trial court Mr. D. L. Kothari made an endorsement below ex. 154 that the said application was not pressed. The said endorsement was made on 3 It appears that thereafter the learned trial Judge decided the suit on merits on 26-4-1976 and dismissed the suit of opponent No. 1 with cost and also directed opponent No. 1s guardian and next friend Bai Santok to pay courtfees which would have been paid if the plaintiff was not permitted to sue as a pauper according to Order 32 Rule 11 C. P. Code.

( 3 ) BEING aggrieved by the aforesaid decree of dismissal o