The Judgment of the Court was as follows:—
Rankin, C.J:— In my opinion, this appeal fails and must be dismissed.
It appears that a suit was brought against Mr. Chuckerbutty upon the terms of a guarantee given by him and it further appears that on the 3rd December 1928 when the case was called on, there was no appearance for this Defendant and an ex parte decree was passed. On the 10th December, his solicitors wrote to the Plaintiffs' solicitor to say that the Defendant was of unsound mind on the date of the decree and that, as there had been no guardian-ad-litem, the decree had been a nullity. On the 22nd January 1929, an enquiry in lunacy was commenced and, on the 8th of April of that year, the Defendant was declared a lunatic and to have been a lunatic since the 10th September 1928. Then, this Defendant died in June 1929 and the Plaintiff proceeded to levy execution against his sons as being his legal representatives. There was set up a case by an affidavit of 8th August that the Plaintiffs knew that their father was of unsound mind and that the decree was a nullity; and, thereafter after considering the matter, at the end of the vacation the Plaintiffs took out a summons before the learned Judge in the suit. The summons was a somewhat poor effort of draftsmanship, but, in effect, it was that the decree should be set aside and that the suit after certain amendments in the plaint should be reconstituted as a suit against Mr. Chuekerbutty's legal representatives. The learned Judge made the order and now the sons maintaining that the decree was a nullity are before us prosecuting their objection to the order setting it aside. In these circumstances we have had a certain amount of argument as to whether the right course in such a case is to proceed by way of review under Or. 47 of the Code. It has also been submitted that is not the only power of the Court and that a case of this sort may be dealt with under sec. 151 of the Code. It appears to me that, if it can be done by way of review, there can be no objection in this case to make such an order upon the summons. It is quite possible to make an order that the summons be treated as a memorandum of review and it is quite possible to deal with any question of limitation. I am satisfied myself that the Plaintiffs acted quite reasonably in waiting to see that the sons would resist the decree on the ground that it was a nullity. I think they acted very promptly and I myself have no difficulty under sec. 5 of the Limitation Act. But I also think that the case of Debi Baksh v. Habib Shah (1) which has been cited before us shows that sec. 151 would be applicable to the facts. In this case both parties are agreed—and there is an order in lunacy to show that at the time this unfortunate gentleman was of unsound mind. Both parties being agreed there is no contest. The only ground for the objection is that his sons appear to think it to be to their interest both to maintain in execution that the decree is a nullity and to maintain in the suit that it ought not to be set aside. That is not to be tolerated at all. What Lord Shaw says in the case of Debi Baksh v. Habib Shah may, I think, be applied in this case. “Such abuse has occurred by the course adopted in the Court of the Judicial Commissioner. Quite apart from sec. 151, any Court might have rightly considered itself to possess an inherent power to rectify the mistake which had been inadvertently made.” In this case, it is not a mere mistake inadvertently made. It is a case where it is established now that the Court when it made the decree against this Defendant in his absence was making a decree against a man who was not able to defend himself in the absence of any guardian-ad-litem appointed in the suit. In my judgment this appeal fails and should be dismissed with costs.
C.C Ghose, J.:— I agree.
Messrs H.N Dutt & Co., Solicitors for the Appellants.
Mr. B. Srimany, Solicitor for the Respondent.
S.C.M