Back
High Court Of Rajasthan
Judgename : D.S.Dave
ANANDRAM - Appellant
Versus
MADHOLAL - Respondent
Civil Revn. 191 Of 1957
Decided On : 12/10/1959
CIVIL PROCEDURE CODE - ORDER 32, RULE 3 - APPOINTMENT OF GUARDIAN AD LITEM FOR MINOR DEFENDANT - ABSENCE OF FORMAL ORDER - EFFECT - DECREE AGAINST MINOR - VALIDITY.
Fact of the Case:
The petitioners, two minor judgment-debtors, filed an application under Section 151 C.P.C. in the Court of Judge, Small Causes, Jodhpur, seeking to set aside a decree passed against them on the ground that the trial Court had not appointed any guardian ad litem for them, rendering the decree void.
Finding of the Court:
The Court held that the absence of a formal order appointing a guardian ad litem for the minor defendants did not render the decree void, as they were effectively represented by their natural guardian, their father, and there was no prejudice caused to them.
Issues: 1. Whether the absence of a formal order appointing a guardian ad litem for the minor defendants rendered the decree against them void. 2. Whether the minor defendants were effectively represented by their natural guardian, their father. 3. Whether the minor defendants suffered any prejudice due to the absence of a formal order appointing a guardian ad litem.
Ratio Decidendi: 1. The Court relied on the decision in Walian v. Banks Behari Pershad Singh, ILR 30 Cal 1021 (PC), which held that a mere irregularity in the appointment of a guardian ad litem, such as the absence of a formal order, does not necessarily invalidate the proceedings, unless it is shown that the minor was prejudiced. 2. The Court found that the minor defendants were effectively represented by their natural guardian, their father, who filed a written statement on their behalf and admitted receipt of a portion of the consideration in the suit. 3. The Court held that the minor defendants did not suffer any prejudice due to the absence of a formal order appointing a guardian ad litem, as their interests were not in conflict with that of their father and they did not allege any specific prejudice.
Final Decision: The Court dismissed the application filed by the minor defendants under Section 151 C.P.C., holding that the decree against them was not void and that they were effectively represented by their natural guardian.
D. S. DAVE, J.
( 1 ) THIS is an application in revision by two minor judgment-debtors through their next friend and mother Mst. Tikudi, against an order of the learned Judge Small Cause Court, Jodhpur, D/-30-7-1957.
( 2 ) THE facts giving rise to it are that non-petitioner No. 1 Madhotal and his two sons filed a money suit against the petitioners and their rather Amarlal, who is non-petitioner No. 4 in this Court. The said suit was decreed against all the defendants on 6-10-1952. On 26-3-57, the petitioners filed an application under Section 151 C. P. C. in the Court of Judge, Small Causes, Jodhpur. It was urged on behalf of the petitioners that the trial Court had not appointed any guardian ad litem for them, that the decree against them was, therefore, void and their names should be struck off from the decree-sheet. This application was dismissed by the learned Judge and hence the present revision application.
( 3 ) IT is urged by learned counsel for the petitioners that the learned Judge Small Cause Court has committed a grave error of law in refusing to set aside the decree, which was passed against the minors even though they were not represented by any guardian duly appointed by the Court,
( 4 ) LEARNED counsel for the non-petitioners Nos. 1 to 3 (decree-holders) has urged in reply that in the very plaint filed by his clients it was made quite clear by them that both the petitioners were minors and that non-petitioner No. 4 Amarlal, who was defendant No. 1 in the suit, was their father and natural guardian. It is further pointed out that his clients presented an application in the trial Court for formally appointing the petitioners father Amarlal as guardian ad litem and that notices were issued to him and also to the petitioners in pursuance of that application. It is also urged that the petitioners father filed a written statement not only on his behalf hut also on behalf of his two sons (petitioners), that the petitioners were thus effectively represented in the suit, that there was no prejudice to them and therefore even if the trial Court failed to pass a formal order appointing the petitioners father as their guardian ad litem, they were not prejudiced in their defence in any manner and hence the trial Court has committed no mistake in refusing to set aside the decree. It has also been argued by him that the petitioners had subsequently filed a suit for setting aside the decree, but it was withdrawn by them, that a fresh suit was already time-barred when the present application was filed, that the petitioners having thus lost their right to file a suit, they could not get the same remedy by merely filing an application under Section 151 C. P. C. after such a long delay.
( 5 ) LEARNED counsel for the petitioners has vehemently urged that his clients had raised an objection in execution petition that the decree against them was void alb initio on account of the non-appointment of a guardian ad litem, that mere lapse of time cannot validate the decree and therefore this Court must interfere in its revisional jurisdiction and set aside the decree against them.
( 6 ) I have given due consideration to the arguments raised by learned counsel for either side. It may be observed that Order 32, Rule 3 C. P. C. lays down that if the defendant is a minor and the Court is satisfied of the fact of his minority, it is incumbent upon the Court to appoint a proper person as guardian for the suit for such minor. The object of this rule is to see that the minors interest does not suffer, that he is properly represented in the suit and his interests are safeguarded. It is also the duty of the Court to see that the guardian appointed is a fit and proper person, that he has no interest directly or indirectly adverse to the minor and that he does not show negligence in conducting the case on behalf of the minor. In short, the law casts a duty on the Court in the case of a minor to appoint a guardian for him for conducting th
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
