Court’s order not deciding the question.

This revision petition raises for consideration the propriety of an order passed by the learned Subordinate Judge of Palghat on O.P. No. 33 of 1949.

The petitioner here is a guardian-receiver appointed by the Court for the estate of certain minors. Investigation by this guardian showed that the minors had certain claims against their step-mother. The guardian made a report to the Court in relation to these claims and he was directed by the learned Subordinate Judge to take legal advice and take such action as might be tendered by the lawyer. In accordance with this direction, the guardian obtained legal advice and submitted a copy of this opinion to the Court and after stating the facts giving rise to the claim filed an application before the Court under section 33 of the Guardians and Wards Act (VIII of 1890) seeking the Court’s opinion, advice or direction regarding the filing of a suit against the respondent. Notice of this application was given to the respondent who is the step-mother of the minors against whom the suit was intended to be filed and who as a step-mother was a party to the guardian petition. She filed a counter-affidavit in which she reserved her objections to the claim on the merits and desired that the Court should direct the guardian to take such steps as he might be advised at his own risk. This counter-affidavit did not characterise the intended suit by the guardian as frivolous or actuated by spite or ill-will. This application with this report and counter-affidavit came on before the learned Subordinate Judge and he disposed it of by a short order which runs thus:

"The guardian has already been directed to take such action as he deems fit. The guardian is referred to the previous order. He is at liberty to institute such proceedings as he may be advised to take, subject however to such risk being taken by the guardian as may be imposed on him later."

The guardian has filed this revision petition challenging the legality or propriety of this order of the learned Subordinate Judge and I am of opinion that his complaint is justified. Sction 33 of the Guardians and Wards Act runs thus:

"33(1)-A guardian appointed or declared by the Court may apply by petition to the Court which appointed or declared him for its opinion, advice or direction on any present question respecting the management or administration of the property of his ward.

(2) If the Court considers the question to be proper for summary disposal it shall cause a copy of the petition to be served on, and the hearing thereof may be attended by such of the persons interested in the application as the Court thinks fit.

(3) The guardian stating in good faith the facts in the petition and acting upon the opinion advice or direction given by the Court shall be deemed so far as regards his own responsibility, to have performed his duty as guardian in the subject-matter of the application.

It is not disputed that the application was properly filed under this provision. If so the Court was bound to consider the propriety of instituting the action. The guardian of course did not need the sanction of the Court to start a litigation if he were to do so at his risk. It is just because he desired to avoid taking risk in the matter that he approached the Court and placed before it the circumstances of the case together with the opinion of the legal adviser. The Court might have after perusing the facts and hearing counsel reached the conclusion that the action is frivolous or is not in the interests of the minors in which event it would leave the guardian to pursue the claim at his risk without utilising the funds of the minors. If the Court should feel that the action is not frivolous the guardian is entitled to an order from the Court giving him directions as to how he should proceed. For this purpose it might be necessary that funds should be sanctioned to enable him to institute the action. In my opinion the learned Subordinate Judge has not exercised