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  • Mullick
  • Jwala Prasad, JJ.
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  • Jwala Prasad, JJ.
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Judicial Opinion Summary

Factual and Procedural Background

Kandarp Narayan Jha was the first mortgagee who obtained two mortgages from the mortgagor Anrudh Prasad Singh of properties Tauzi No. 10066 and Tauzi No. 280 on 7 June 1897 and 20 November 1897 respectively. A second mortgage in respect of both properties was earlier executed in favour of Lakshmidat, predecessor-in-interest of Nand Lal Jha, Mahendra Jha and Abhey Ram Jha.

The second mortgagees brought suit first (24 May 1905) and obtained a preliminary decree. The first mortgagee then brought suits on 26 December 1903 (two suits, Nos. 98 and 99 of 1906 in the narrative) impleading Nand Lal, Mahendra and Abhey Ram as defendants. A guardian ad litem, Nand Lal Jha, was appointed for Abhey Ram (a minor) on 26 January 1908; notices relevant to that appointment were alleged served in December 1905 and January 1906. Ex parte decrees were obtained on 18 April 1906 and Tauzi No. 10066 was sold and possession given in 1910.

Execution steps: after a first, unsuccessful execution attempt in 1912, a second execution was taken out on 1 April 1915; the property was sold on 17 January 1916 and an attempt to deliver possession occurred on 12 January 1917 but was resisted by the first mortgagee. Abhey Ram, who attained majority in 1908, filed two applications on 6 March 1917 under Order IX, Rule 13, CPC, seeking to set aside the ex parte decrees on the ground of lack of service on him (and improper appointment/notice in respect of a guardian). The Subordinate Judge dismissed the applications on limitation and merits (finding service regular, Nand Lal properly appointed, and lack of adverseness in interest). Abhey Ram appealed (appeals Nos. 114 and 287 of 1918). The appellate court (Mullick, J. and Jwala Prasad, J.) heard the matter and dismissed the appeals; the application was dismissed and costs were awarded.

Legal Issues Presented

  1. Whether the applications under Order IX, Rule 13, CPC, by Abhey Ram (seeking to set aside two ex parte decrees dated 18 April 1906) were barred by limitation because he became aware of the decrees earlier than the date he alleged (15 February 1917).
  2. Whether an application under Order IX, Rule 13, can be used to challenge the legality of the appointment of a guardian ad litem (i.e., whether a defendant can in such a proceeding attack that there was no valid guardian appointed and thus the decree is void or a nullity).
  3. Whether, on the evidence, summonses and notices (both for appointment of guardian and for service of summons in the suits) were duly and regularly served.
  4. Whether the alleged relationship and interests between Nand Lal Jha and the petitioner (joint property/interest) made the appointment of Nand Lal adverse to the petitioner such that the petitioner had not been properly represented.

Arguments of the Parties

Appellant's (Abhey Ram Jha) Arguments

  • He alleged the ex parte decrees were obtained without service of summons upon him and without valid appointment/notice to a guardian, and therefore were vulnerable under Order IX, Rule 13.
  • He claimed he only learned of the decrees on 15 February 1917, so his applications (filed 6 March 1917) were within the 30-day limitation period applicable to O. 9, R. 13.
  • It was contended that the evidence relied upon by the Subordinate Judge (including documents from execution proceedings and Ex. D, an application in the petitioner's own execution) did not necessarily prove earlier knowledge — the application might have been made as a matter of caution to sell other properties rather than because he knew the mortgaged properties were already sold.
  • It was suggested Nand Lal Jha, Mahendra Jha and the first mortgagee were in collusion to defraud the minor (i.e., the guardian's appointment and omission to act indicated collusion and suppression of service).
  • Some witnesses (Darsan Chaukidar, Raghubar Lal, Anant Lal) denied witnessing service, which the appellant relied on to challenge the evidence of the peons who deposed to service.

Respondents' Arguments

  • Preliminary contention: the validity of guardian appointment and any defect therein could not be challenged under O. 9, R. 13, because that rule presupposes a valid decree against a party and a defect in guardian appointment would render the decree a nullity to be attacked only in a regular suit (as argued before Mullick, J.).
  • Alternatively, on the facts, the respondents maintained that notices and summonses were duly and properly served (supported by peon testimony and the original notices in the records), and that there was no collusion or motive for the first mortgagee to suppress service.
  • They argued the petitioner had actual knowledge of the prior decrees and sales well before 15 February 1917 — in particular, the petitioner's own execution proceedings, low valuation and earlier filings meant he must have known of prior encumbrances and the prior decrees.
  • The respondents relied on the Subordinate Judge's findings accepting the peons' evidence and rejecting the appellant's witnesses as partisan and not credible.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court's reasoning is recorded in two separate judgments (Mullick, J. and Jwala Prasad, J.). Both judges ultimately dismissed the applications and appeals, but they approached the pivotal legal question (whether O. 9, R. 13 can be used to challenge appointment of a guardian) differently.

Mullick, J. — Analysis

  1. Limitation and Knowledge: Mullick, J. accepted the Subordinate Judge's finding that the petitioner was aware of the prior decrees and sales long before 15 February 1917. He relied on documentary evidence and execution proceedings (including Ex. D — an application in the petitioner's own execution) to infer earlier knowledge: the petitioner sought to bring other properties to sale, which the Judge inferred indicated awareness that the mortgaged properties had been sold and would fetch nothing at later sale.
  2. Availability of O. 9, R. 13 to challenge guardian appointment: Mullick, J. held that O. 9 presupposes the existence of a valid decree against a party on the record; if a defendant alleges no valid guardian was appointed (i.e., that the defendant was not properly impleaded), that plea goes to the existence of a party on the record and would render the decree a nullity. That kind of attack, he said, is beyond the scope of O. 9 and must be pursued by a regular suit seeking a declaration of nullity, not by the summary remedy under O. 9.
  3. On the merits even if the point were open: he found the evidence sufficient to show proper service of notices and summonses. He accepted the testimony of court peons (Sheo Nandan Singh, Rekha Rai) and identifiers, and the presence of original notices in the record. He was unwilling to disbelieve public servants' presumption of regularity absent strong reasons. The court rejected the appellant's partisan witnesses (Darsan, Raghubar Lal, Anant Lal) as unreliable.
  4. Adverseness of interest: Mullick, J. also accepted the Subordinate Judge's finding that Nand Lal and the petitioner were joint in property until 1318 F.S (1911) based on plaints, vakalatnamas and other filings. If Nand Lal was the head of the family and joint in property, any decree against him would bind the petitioner and there was no irregularity arising from representation.
  5. Conclusion: On limitation and merits the applications failed; O. 9 was inadequate to challenge guardian appointment and, in any event, service was proved and there was no adverse interest requiring relief. The appeals were dismissed with costs.

Jwala Prasad, J. — Analysis

  1. On the scope of O. 9, R. 13: Jwala Prasad, J. disagreed with Mullick, J.'s strict view. He held that it would be too wide to say R. 13 implies the decree must be valid in every respect. A defendant may, under R. 13, show that an ex parte decree was obtained by fraudulent or surreptitious service of summons. Where there is no service upon the minor or his proper guardian (as required by Order XXXII rules), that could be a sufficient cause within R. 13 to set aside an ex parte decree. He reasoned that the plaint validly instituting the suit against a minor makes the minor a party and that the summons must be served upon the minor; service upon an improperly appointed guardian may be challenged under R. 13.
  2. On the facts: notwithstanding his broader view of the scope of R. 13, Jwala Prasad, J. agreed with Mullick, J. on the facts. He accepted the Subordinate Judge's findings that the petitioner must have known of the prior decrees (from his own execution proceedings and acts between 1908 and 1916 — valuations, joint petitions, and actual execution steps) and that the peons' depositions established lawful service. He found it impossible to accept the petitioner's contention of long ignorance of the decrees and sales.
  3. On motive/collusion: he saw no motive for the first mortgagee to suppress service or to collude, since it was in the first mortgagee's interest to have proper proceedings and to enable redemption by subsequent mortgagees.
  4. Conclusion: On both limitation and merits (service and knowledge) the application had to be dismissed; petitioner’s application under O. 9, R. 13 was time-barred or otherwise without sufficient cause — hence dismissal.

In sum, though the judges differ on the legal reach of Order IX, Rule 13 (Mullick, J. taking the view that it cannot be used to attack the appointment of a guardian whose absence would render the decree a nullity; Jwala Prasad, J. taking a wider view that R. 13 can cover fraudulent or surreptitious service and defective appointment where "sufficient cause" is shown), they concurred on the factual findings and on the ultimate disposition: the applications were dismissed and the appeals failed.

Holding and Implications

Holding: The applications under Order IX, Rule 13, to set aside the ex parte decrees were dismissed and the appeals (Nos. 114 and 287 of 1918) were dismissed with costs.

Direct consequences:

  • The petitioner's (Abhey Ram Jha's) applications to set aside the ex parte decrees of 18 April 1906 were denied.
  • The appeals from the Subordinate Judge's dismissal of those applications were dismissed and costs were awarded against the appellant.

Broader implications:

The opinion does not pronounce a single binding new rule resolving the scope of Order IX, Rule 13 beyond the parties: the two judges expressed differing views on whether O. 9, R. 13 can be used to attack the validity of a guardian's appointment (Mullick, J. would confine such challenges to a regular suit; Jwala Prasad, J. would allow R. 13 to cover fraudulent or surreptitious service and defects that prevented a defendant from appearing). The decision, as recorded, resolves the dispute between these parties on the factual record and rejects the petitioner's claims; it does not establish a definitive precedent in the text provided.

Disposition: Application dismissed. Appeals dismissed with costs.

Show full summary ...

    Abhey Ram Jha Petitioner v. Kandarp Narayan Jha And Others Opposite Parties

    Mullick, J.:— These two appeals arise out of two decrees obtained by Kandarp Narayan Jha against a mortgagor named Anrudh Prasad Singh and against three second mortgagees named Nand Lal Jha, Mahindra Jha and his nephew Abhey Ram Jha. It appears that Kandarp Narayan took two mortgages of the properties Tauzi No. 10066 and Tauzi No. 280 on 7th June, 1897 and 20th November, 1897 respectively from Anrudh Prasad. Thereafter a second mortgage in respect of both properties was executed by the mortgagor in favour of Lakshmidat, the predecessor-in-interest of Nand Lal Jha, Mahendra and Abhey Ram who was the son of Narain Prosad's brother Nand Lal.

    2. The second mortgagees brought their suit first, namely, on 24th May, 1905 and obtained a preliminary decree. Then on 26th December, 1903 the first mortgagee brought two suits upon their two mortgages impleading Nand Lal, Mahendra and Abhey Ram as defendants 7, 8 and 9 and on 26th January, 1908 Nand Lal Jha was appointed guardian ad litem of Abhey Ram, who was found to be a minor. It is alleged that the service of the notice necessary for the appointment of a guardian according to law was made on 13th December, 1905 and that the summons in the suit was served upon the minor defendant on 13th January, 1906. The decree was obtained on 18th April, 1906 and Tauzi No. 10066 was brought to sale on 15th June, 1910. The sale was confirmed on 23rd July, 1910, the sale-certificate was issued on 23rd July, 1910, the writ of delivery on 22nd September, 1910 and possession given to the decree-holder on 21st October 1910.

    3. Meanwhile nothing appears to have been done upon the decree of the second mortgagees till 25th April, 1912, when the first execution was taken out. For some reason which has not been disclosed, that execution proved infructuous, and the application was struck off on 28th May of the same year. The second execution was taken out on 1st April 1915. Tauzi No. 10066 was brought to sale on 17th January, 1916 and the delivery of possession was attempted on 12th January, 1917. Resistance was offered on behalf of the first mortgagee with the result that delivery of possession could not be made. Abhey Ram, who had in the meantime attained majority in 1908 thereupon filed two applications on 6th March, 1917 alleging that the decrees obtained by mortgagee 1 upon his two mortgages in Suits Nos. 98 and 99 of 1906 had been obtained without service of summons upon him and that he was therefore entitled under O. 9, R. 13 of the CPC, to have these decrees set aside. He alleged that he became aware of the existence of these decrees on 15th February, 1917 and that limitation, which is 30 days in this case, began to run against him from that date. The Subordinate Judge took evidence and found, firstly, that the petitioner became aware of the decrees long before the date alleged by him and that the applications were barred by limitation. Secondly, he found upon the merits that the summonses in the suits were regularly and duly served and that the petitioner was not entitled to invoke the and of O. 9. Thirdly, he found that the necessary notices were duly served and that Nand Lal Jha was a legally appointed guardian. Fourthly, he found that the petitioner was joint in property with Nand Lal Jha up to 1318 F.S, which corresponds to 1911, and that there was therefore no reason why the interest of Nand Lal Jha at the time of the suits should have been adverse to that of the petitioner.

    4. It was contended before the learned Subordinate Judge that even if the appointment of Nand Lal Jha had been made according to law, he was a person whose interest it was to collude with the plaintiff for the purpose of defrauding the petitioner. It was suggested in fact that the omission on the part of Nand Lal Jha and Mahendra Jha, who were adults at the time of the decrees, to make any petition for the restoration of the case indicates that they were in collusion with mortgagee 1 for the purpose of defrauding their minor nephew. Against the decision of the learned Subordinate Judge dismissing the applications for restoration the petitioner Abhey Ram prefers the present two appeals, viz., Nos, 114 and 287 of 1918. Mr. Sinha appearing on behalf of the appellant contends that the learned Subordinate Judge has committed an error of fact in finding that the date of the petitioner's knowledge was not 15th February, 1917. The Subordinate Judge has relied upon the proceedings in execution of the two decrees obtained by mortgagee 1. He has also relied upon the proceedings in the second execution of the appellant's own decree, namely, in the execution case which was instituted on 1st April 1915, and from these items of evidence he has drawn the inference that the fact that the property No. 10066 was sold so far back as 1910 must have been and was known to the petitioner. It is necessary to remember in this connexion that the petitioner attained majority in 1908 and that at the time of the suit he was about 16. It is difficult to believe that he was ignorant of the sales and the proclamations relating thereto and the delivery of possession in connexion with the decree obtained by the first mortgagee. Then there is also an important piece of evidence, namely, Ex. D, which is an application made in the petitioner's own execution asking that in addition to the mortgaged properties certain other properties belonging to the judgment-debtors should be brought to sale. From this application the learned Subordinate Judge has drawn the inference that the petitioner, knowing that the mortgaged properties had been already sold and would fetch nothing at the second sale, was anxious to bring to sale other properties belonging to the judgment-debtors. Mr. Sinha on the other hand contends that the petition, does not necessarily warrant this inference and that it is equally possible that the applicant for the take of greater caution desired to bring to sale properties other than the mortgaged properties. Now the inference to be drawn must depend upon the balance of the evidence in the case. In my opinion the learned Subordinate Judge was right, in view of the other evidence in the case, in coming to-the conclusion that the second mortgagees would not have asked for the sale of other properties if they had not been aware that the mortgaged properties had already been sold.

    5. In my opinion the balance of evidence is in favour of the inference drawn by the learned Subordinate Judge. Therefore at the outset it would seem that the-applications for restoration are barred by time. On going next into the merits it seems to me that the opposite party, the respondents, have a still stronger case. The first question is, whether or not, the petitioner can in a proceeding under O. 9, R. 13, attack the legality of the appointment of Nand Lal Jha, that is to say, whether he is at liberty to show that Nand Lal Jha was appointed without any service of the notices required by law.

    6. It may be conceded that although., the provisions of O. 32 of the present CPC, are more rigorous with regard to the service of notice upon the proposed guardian, the minor and the natural guardian, the law as interpreted in judicial decisions was substantially the same under the older Code. But it seems tome that if the petitioner desires to attack the validity of the appointment of Nand Lal Jha then he cannot avail himself of the provisions of O. 9, because the foundation of O. 9, is that a valid decree has been passed against the defendant. If the defendant alleges that there was no legal guardian appointed, then that is tantamount to a plea that he was not impleaded in the suit, and that the decree was-made against a person who was not upon the record.

    7. In that case the decree must be treated as a nuillity and the only remedy, if any, is a declaration by a regular suit. O. 9, which relates to the setting aside of ex parte decrees, assumes that there was a party upon the record against whom a valid decree has been made and is binding.

    8. It is a special provision laying down a summary procedure for setting aside decrees which are valid but which have been obtained by some irregularity or suppression in the service of the necessary summons. In my opinion the contention of the respondents before us that in this proceeding it was not open to the petitioner to challenge the legality of the appointment of Nand Lal is well founded. But assuming that it was open to him to raise the question, I agree with the respondents that the evidence is sufficient for the purpose of showing that the notice upon Nand Lal was duly and properly served. On this point the peon, Sheo Nandan Singh, has been called and deposes that he did serve the notice upon Nand Lal Jha as the guardian of Abhey Ram and upon Abhey Ram himself. It is said that one Darsan Chaukidar witnessed the service. Darsan has been called by the appellant and deposes that he did not witness any such service. But on the other hand the identifier Prem Dutt deposes in favour of the respondents and the learned Subordinate Judge, after watching the demeanour of Darsan and of the witness produced by the respondents, has come to the conclusion that the balance of evidence is in favour of the respondents. He also draws attention to the fact that Darsan has not been a chaukidar of the village for eight or nine years. In my opinion there is no reason why a public servant such as the peon should be disbelieved unless there is strong and cogent reason for rejecting his evidence. I agree that the evidence as to the service of notice upon Nand Lal and Abhey Ram in connexion with the guardianship matter was sufficient. There is also the general consideration that there was no reason why the first mortgagee should suppress the service of the necessary notice, seeing that it was eminently to his interest to see that all the proceedings in connexion with his suit were regular and legal, he was concerned to get his money upon his mortgage as quickly as possible and to, give the second mortgagees an opportunity to redeem, and he must have known that any irregularity in bringing the second mortgagees upon the record was bound to land him in difficulties and future litigation.

    9. Then as regards the service of the summons the evidence, in my opinion, is equally in favour of the respondents. The peon Rekha Rai has been called to prove the service in the two cases Nos. 98 and 99. He is supported by the identifier Nil Kantha Jha. In the peon's return it is stated that a patwari named Raghubar Lal witnessed the service. Raghubar Lal has been called by the appellant and denies that he did any such thing. The learned Subordinate Judge has declined to believe Raghubar Lal and has accepted the evidence of the peon and the identifier. I am unable, upon the evidence which has been read to us and which has been very fairly put to us by the learned counsel, to say the inference drawn by the learned Subordinate Judge was wrong and particularly so, as he had the opportunity of seeing the witnesses himself and watching their demeanour in cross-examination. In this connexion it may be noticed that one Anant Lal has deposed in favour of the appellant, similarly denying that there was any service of notice in the matter of the guardianship. The learned Subordinate Judge appears to have discarded the evidence of this witness for the same reason as that of Raghubar Lal. He thinks that these two witnesses, although apparently of a respectable class, are persons on the side of the appellant and that their evidence is not worthy of credit. It is obvious that in the case of processes served very nearly 11 years previously, direct evidence must have been difficult to obtain and it is fortunate that in this case the records were preserved and that the original notices were available to the Court. In my opinion the presumption of regularity which attaches to the proceedings of a public officer has not been sufficiently rebutted. If therefore the summons was regularly served upon the petitioner as represented by his guardian Nand Lal Jha, clearly he has no case for restoration.

    10. With regard to the question whether or not the nature of Nand Lal Jha's interest was adverse to that of the petitioner, assuming that the matter can be adjudicated in the present proceedings, the evidence clearly shows that the Subordinate Judge's finding that Nand Lal Mahendra and the petitioner were joint in property till 1318 F.S is correct. This is shown by the plaint filed by the petitioner and his cosharers in their mortgage suit in 1905 as well as by the two execution applications and the vakalatnamas filed in connexion therewith as also by the petition Ex. “D,” to which reference has already been made. In all these documents as also in a vakalatnama in connexion with a decree absolute filed on 11th July, 1908, it is clear that the petitioner was operating jointly with Nand Lal and that his allegation that his maternal uncle was his guardian at that time cannot be accepted. It is also clear from these documents that the story of separation in 1312 and subsequent ill-feeling has been rightly disbelieved by the Subordinate Judge. The petitioners case was that in 1905, which corresponds to 1312 P.S, his mother was his guardian and that Nand Lal Jha was not joint with him and that he had no right to represent him in the suit. The plaint of 1905 shows that his mother was not in fact his guardian at that time. It follows also that in 1905 if Nand Lal was joint in food and property with the petitioner and was the head of the family, then any decree obtained against Nand Lal would hind the petitioner and that the question of irregularity in service would not arise. It also follows that if Nand Lal Jha was the karta, and if as is the petitioner's case, service was properly made upon Nand Lal, then there would be no object on the part of the plaintiff in the suit to suppress service upon the petititioner. For all reasons therefore I agree with the learned Subordinate Judge that the summons in the suit was duly and properly served. The applications were therefore rightly rejected and the appeals before us must fail, and are dismissed with costs.

    11. Jwala Prasad, J.:— The petitioner Abhey Ram Jha made an application on 6th March, 1917, under O. 9, R. 13, to set aside two ex parte decrees passed on 18th April, 1906 against him and his two uncles and others, alleging that he came to know of the said decrees on 15th February, 1917. The grounds for this application were that (1) the ex parte decrees were passed without notice and knowledge of the petitioner in concert with the other defendants to the suit, and (2) he was a minor at the time and no guardian was appointed for him and no notice was served upon any guardian of the petitioner and no step was taken by him or his guardian in that suit and hence the decree was absolutely illegal and ineffective and liable to be set aside. On behalf of the opposite party a preliminary objection is taken that the second ground could not be entertained under O. 9, R. 13. The contention is that if no guardian ad litem was appointed on behalf of the petitioner under O. 32, or there was any fraud in the appointment of guardian, there was no valid decree against him, whereas O. 9, R. 13, presupposes a valid decree. The second contention is that the remedy of the petitioner was only by means of a suit and not by an application under 9, R. 13. I do not think there is any substance in these contentions. No doubt a reguler suit does not lie to set aside a decree ex parte on the mere ground of non-service of summons, but where a decree ex parte is alleged to have been obtained by a plaintiff by fraud the defendant is entitled, besides the remedies provided for in O. 9, to institute a regular suit to set aside the decree on the ground of fraud. The fact that the defendant could get his redress by means of a suit does not in itself bar his availing himself of the remedy provided for in O. 9, R. 13, provided he satisfies the condition laid down in O. 9, R. 13. The petitioner was a minor defendant in the original suits. Under O. 32 of the Code, the Court was required to appoint his guardian for the suit. This appointment is to be made either on application in the name and on behalf of the minor or by the plaintiff under O. 32, R. 3. Under R. 4 the order can be made only upon notice to the minor and to any guardian of the minor appointed or declared by a competent authority or when there is no such guardian, upon notice to the father or other natural guardian of the minor.

    12. The object of this rule is that the minor and his guardian specified in the said rule should have notice of the proceedings instituted under R. 3 for the appointment of his guardian. Non-service of notice upon the minor or his guardian specified in the said rule would prevent the minor from appearing in the suit and getting a proper guardian appointed. The appointment of a guardian of a minor is after the institution of the suit. The plaintiff had joined the petitioner as a defendant under O. 1, R. 3, and had described him as a minor under O. 6, R. 3, read with the form prescribed in Appx. A, Code of Civil Procedure. A plaintiff, if a minor, has to file his suit describing himself as such through a next friend who must be named in the plaint; but a suit against a minor need only describe him to be a minor and need not name the guardian ad litem, for the appointment of the guardian ad litem rests with the Court. Thus the plaint is validly instituted by presenting the plaint in Court against the minor, whether the guardian of the minor was subsequently appointed or not. The minor was therefore a defendant in the suit and was a party to it. The summons in the suit is to be served upon the minor and not upon the guardian who under the law is not a party to the suit, and if the summons is served upon a guardian not properly appointed, the minor can very well say that the summons was not duly served and that he was prevented from appearing in the suit through his proper guardian and that there was sufficient cause within he meaning of R. 13 for his non-appearance.

    13. Order 9, R. 13, requires the following conditions: (1) that the applicant must be a defendant in the suit, and (2) that the summons was not duly served or that he was prevented by any sufficient cause from appearing. There is no doubt that the petitioner was a minor and if he can show that the summons was not duly served upon him through a proper guardian whose appointment takes place after the valid institution of the suit, or that he was prevented by any sufficient cause from appearing, he would be entitled to come under the rule. I think that it would be too wide a proposition to lay down that R. 13 implies a valid decree, for a defendant is always entitled to show that an ex parte decree was obtained against him by means of surreptitious or fraudulent service of summons, although it was made to appear to the Court under O. 9, R. 6, that the summons was July served. Although on the face of the decree it appears that the decree was proper and valid, the defendant in applying under R. 13 to set aside can show that the Court was misled by fraud in passing the decree. Besides, the words ‘sufficient cause’ in the rule would well bring the present case within the purview of that rule, if the defendant could show that there was no appointment of the guardian or there was defect in the appointment of the guardian which prevented him as a defendant to appear; in the suit. I therefore disagree with the view of my learned brother on this point.

    14. Now as to the first contention of the petitioner: On merits of the case I agree with my learned brother that the application must be dismissed. The decrees were obtained upon plaints in which the petitioner was described as a minor under the guardianship of his uncle Nand Lal Jha. On 16th December, 1806 the plaints were admitted and an order was passed to issue notice to the minor defendants and their guardian fixing 15th January, 1906. On 16th January the order was-that notice was served, that no objection was made and that the proposed guardian Nand Lal Jha be appointed guardian ad litem of the minor petitioner. Thereafter the case proceeded in the ordinary way, summonses were issued upon the defendants and ultimately on 18th December, 1906 the ex parte decrees in question were passed. The petitioner and his uncles were impleaded as defendants on account of their being subsequent mortgagees in respect of the properties which were covered by the decrees sought to be set aside. To enforce their subsequent mortgage a suit was brought on behalf of the petitioner and his two uncles on 24th May, 1905, and a decree was passed on 26th July, 1905. In that suit the uncle of the petitioner, Nand Lal Jha, was described as his next friend. The decrees which are the subject matter of the present application were executed and the mortgaged properties were sold in 1910. Possession was delivered in the same year.

    15. In the year 1908 the petitioner attained majority and on 11th July, 1908 there appears to have been filed a joint petition on his behalf as well as on behalf of his uncles, praying for their own mortgage decree being made absolute. The execution of that decree was taken once in 1912 and subsequently in 1915, and ultimately on 17th January, 1916 the mortgaged property was sold. Thus from 1908 when the petitioner attained majority upto 1916, his own mortgage decree was under execution. In order to sell the property in execution of that decree it was incumbent upon the petitioner to ascertain the prior encumbrances upon the property, the nature of the property and various other matters connected with the property. The valuation of the property sought to be sold in execution of a decree is always fixed in consideration of the prior encumbrances and mortgages upon that property and as a matter of fact the valuation given by the petitioner in his own execution shows that the prior encumbrances were taken into account as he fixed a very low value of the property. The petitioner therefore must have come to know of the existence of the decrees on the prior mortgages in question and the sale of the property in execution of those decrees. It is impossible to conceive that the petitioner was all along ignorant of the ex parte decrees in question. From this point of view, the applications to set aside the ex parte decrees are barred by time. Apart from this there is evidence afforded by the depositions of the Court peons that the summonses in the original suits were served according to law. There is no reason to discard that evidence; nor has any motive been shown in this case which would impel the prior mortgagee to get the summonses served surreptitiously and collusively. Obviously it was not to his benefit, for it would frustrate the very object of making the subsequent mortgagees parties to the suit, namely, to give them a chance to redeem the mortgage.

    16. Upon all these grounds I agree that the petitioner had knowledge of the decrees against him long before the time for filing the application under O. 9, R. 13, had expired. I also hold that the summonses were properly served. The application must therefore be dismissed.

    V.S/R.K

    17. Application dismissed.

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    Comments

    Abhey Ram Jha Petitioner v. Kandarp Narayan Jha And Others Opposite Parties
    (Mar 26, 1919)