Sir Kumaraswami Sastri, Kt., J. — This appeal arises out of an application by a minor to remove an attachment of his properties in execution of the decree in O. S. No. 348 of 1921 on the ground that he was not properly represented in the suit and that the decree which was collusively obtained is not binding on him and is not executable against him. The District Judge held that it was not competent for the minor to raise the question in execution and hence this appeal.
The petitioner is the adopted son of one Venkata Subbanna and legatee under his will. The adoptive mother of the minor was appointed executrix and under the Hindu Law she would be the natural guardian. She was, however, removed from the guardianship and the natural father of the minor was appointed guardian under the Guardians and Wards Act. The order was made on the 21st of March, 1922, but he gave security on the 27th of September, 1922.
O. S. No. 348 of 1921 was filed by the plaintiff against the minor on a promissory note executed by the adoptive mother purporting to act as his guardian. The plaintiff applied to appoint the adoptive mother as the guardian-ad-litem of the minor though she was the executant of the promissory note and she was appointed guardian-ad-litem. She raised no defence and an ex parte decree was passed against the minor. The appointment of the defendant's natural father as guardian by the District Court was after the adoptive mother was appointed guardian-ad-litem but before the decree. The plaintiff took no steps to inform the Court of the fact that the District Court appointed the natural father as guardian or get the guardian so appointed brought on record as guardian of the minor. In Bhimaji v. Hussain Saheh,(1) it was held by Sadasiva Ayyar and Spencer, JJ., that if a minor has a guardian appointed for him by a competent authority and a decree is passed with somebody else as guardian-ad-litem, the decree is not binding on the minor even though the Court may have acted in ignorance of the existence of the guardian so appointed.
R. 3 of O. 32, of the Code of Civil Procedure requires that the guardian-ad-litem of a minor should not be one whose interests are adverse to those of minor. It is contended for the appellant that the executant of a document is not, in a suit against the minor, on the document, a fit and proper person as his interests are adverse to those of the minor, he being by reason of his position as the executant prevented from raising pleas as to the validity of the document which a stranger can raise and that in any event it is to his interest to support the document as otherwise he may become personally liable. It is also contended that where a person whose interests are adverse is appointed, the appointment being in contravention of R. 3, O. 32 is invalid and the minor should be treated as unrepresented and that any decree against him, it is argued, is void and incapable of execution. It is also argued that in such cases objection can be taken in execution.
It is contended for the respondent that the fact that the executant of a document is appointed guardian-ad-litem does not necessarily render the appointment invalid, that at best it would give the minor a right to set aside the decree if there was any injury to him by reason of any fraud or collusion and that where a decree has been passed it cannot be questioned in execution but a separate suit ought to be filed.
The questions that arise are (1) is the appointment of the executant of a document or a person who enters into a transaction sued on as the guardian of a minor in a suit upon the document or the transaction valid? and (2) whether the question as to the minor being unrepresented either by reason of the invalidity of the appointment or by reason of the guardian appointed not putting forward any defence and thereby prejudicing the minor can be raised in execution.
I have little doubt that the person who executes a document or enters into a transaction should not as a rule be appointed as guardian-ad-litem of a minor in a suit upon the document or transaction as such a person is interested in upholding the transaction which he has entered into and is precluded by law from raising some at least of the defences which would be open to third parties to raise on behalf of the minor. No person should be appointed to represent the interests of a minor whose interests may conflict with his duty as guardian. I think that the express prohibition in O. 32, R. 3, makes an appointment in contravention of its terms invalid and is not a mere irregularity.
There can be little doubt that if a minor was entirely unrepresented, the decree would be a nullity. I may refer to the decisions of their Lordships of the Privy Council in Khiarajmal v. Daim and Rashid-un-nisa v. Muhammad Ismail Khan(2) and to the decision of Madhavan Nair, J., in Arunachalam Chettiar v. Suban Sahib(3) where the learned Judge held that the question can be raised in execution. I think the same result must follow if a minor is represented by a guardian whose interests are adverse to those of the minor as it will be in express contravention of R. 3, O. 32, and the ratio decidendi in Bhimaji v. Hussain Saheb, would apply. In Sellappa Goundan v. Masa Naiken, it was held by Odgers and Hughes, JJ” that a minor represented in a suit by a guardian-ad-litem whose interests are adverse to those of the minor is not legally represented at all in the suit. It appears from the facts of that case that the father who executed the bond on which the suit was filed was appointed guardian-ad-litem of his minor sons and the learned Judges were of opinion that such an appointment was invalid as the interests of the father were adverse to those of his sons and that the decree obtained did not bind the minors. In S. A. 1092 of 1918, Oldfield and Hughes, JJ., referring to the decision of their Lordships of the Privy Council in Rashid-un-nisa v. Muhammad Ismail Khan observe:
“We must accept it as deciding that the representation of a minor by a guardian whose interest is adverse is no legal representation at all, the rule being that the decision obtained in proceedings so instituted is null and void.”
The learned Judges were of opinion that the father who was the debtor and on whose liability the claim against both the father and the minor son was based was a person whose interests were adverse and he was disqualified under O. 32, R. 3, and that the decree was void against the minor.
A contrary view was taken in Appeal No. 347 of 1919 by Sadasiva Aiyar and Napier, J J. The learned Judges were of opinion that where a guardian-ad-litem was appointed, the decree was good even though his interests were adverse. The same view was taken by Sadasiva Aiyar, J., in Payidanna v. Lakshminarasamma(4). The matter was again raised before me and Wallace, J., in. C.M.A No, 269 of 1927, and we were of opinion that it was open for a minor to prove that the interests of the guardian-ad-litem or the next friend were adverse and he was not properly represented and that if he showed that he was prejudiced the decree would not bind him.
The balance of authority is against the view taken by Sadasiva Aiyar, J., that even if it is shown that the interests of the guardian are adverse to those of the minor the appointment of the guardian-ad-litem would still be good and the decree still valid against the minor.
As regards the question whether objection can be taken in execution or a separate suit should be filed, it seems to me that a distinction must be drawn in these cases as to whether the decree is void against the minor or is only voidable. If the decree is void, it is difficult to see why the matter could not be raised in execution. It seems to me to be a great hardship for the minor that he should be powerless to prevent his properties from being sold in execution and that his only remedy should be to file a regular suit with incidental expenditure of money and delay in getting a final decree. The question may also arise as to how far bona fide purchasers in execution of the decree would be affected by any subsequent adjudication if the decree was not binding on the minor. If the question were merely one of balance of convenience, it is better that the question as to whether the decree is void and not executable should be decided in execution proceedings rather than proceedings in execution which may be subsequently decreed to be invalid against a minor should be allowed to go on and properties sold under an invalid decree. The duty of the Court to see that a minor is properly represented and is not prejudiced by any violation of the laws enacted for his benefit is better fulfilled by deciding the question when it is sought to execute the decree against him. All the minor's property may be sold and he reduced to beggary in execution of a decree void against him. Giving him a right to file a suit and recover his property after all the mischief is done is not of much use.
In Rajah of Kalahasti v. Venkatadri Rao it was held that the general rule that an executing Court cannot go behind the decree would not apply to cases involving the infraction of law enacted in the public interest and the learned Judges refer to the decisions of this Court and the other Courts on the point. There is no reason why the rule should not apply to cases where there is infraction of the rule about the appointment of guardian-ad-litem which is for the benefit of the minor.
Reference has been made by the respondent to Kalipada Sarkar v. Hari Mohan Dalal where it was held that the executing Court could not go behind the decree; to Zamindar of Ettiyapuram v. Chidambaram Chetty where it was held that a party who does not raise an objection as to jurisdiction in the course of a mortgage suit is not entitled to take the objection in execution; to Sami Mudaliar v. Muthiah Chetti where Ayling and Odgers, JJ., followed Zamindar of Ettiyapuram v. Chidambaram Chetty and were of opinion that the decision in Lakshmanaswami Naidu v. Rangamma was overruled; and to Lahore. Bank v. Ghulam Jilani where it was held that the executing Court cannot refuse to execute the decree on the ground that the minor was not represented in the suit. In Gora Chand Haldar v. Prafulla Kumar Roy it was held by a Full Bench that where a decree is made by a Court which apparently had no jurisdiction either pecuniary or territorial or in respect of the debtor's person to make the decree it may be questioned in execution proceedings and that the executing Court can refuse to execute the decree on this ground. If this is good law, there seems to be no reason why it could not be pleaded that a decree is void so far as the party against whom it is sought to be executed is concerned.
Having regard to the importance of the question raised and the conflict of opinion referred to above and the desirability of having an authoritative ruling in such cases, I would refer the following question for the decision of a Full Bench:
(1) Whether the appointment of a person who executes a document or enters into a transaction as the guardian-ad-litem of a minor is valid in a suit on the document or transaction;
(2) Whether the appointment of a person whose interests are adverse to those of the minor as his guardian-ad-litem renders the decree void against the minor or only voidable by him;
(3) Whether objection could be taken in execution that the decree is void.
Devadoss, J.—The appellant is a minor and was adopted to one Madduri Venkata Subbanna by his widow. She renewed a pro-note executed by her husband in favour of the plaintiff who brought a suit on the pro-note against the widow as 1st defendant and the appellant as 2nd defendant with his adoptive mother as his guardian-ad-litem and obtained a decree. He now seeks to execute the decree against the property of the minor. Various objections were raised against the execution of the decree, but the main objection is that the appellant was not properly represented in the suit as the 1st defendant's (the adoptive mother's) interests were adverse to those of the appellant and her appointment as guardian-ad-litem was therefore illegal and the decree is a nullity and cannot be executed against the appellant. Both the lower Courts have disallowed the contention of the appellant and directed the execution of the decree against his property. Hence this appeal with his natural father as his guardian.
Mr. Lakshmanna for the appellant raises two contentions (1) that the decree obtained against the minor appellant with a guardian whose interests were adverse to those of the minor is a nullity and therefore cannot be executed against the minor's property; (2) the executing Court can entertain an objection to the legality of the decree when it was obtained against a minor with a guardian-ad-litem whose interests were opposed to those of the minor. O. 32, R. 3 (1), Civil Procedure Code, says:
“Where the defendant is a minor, the Court, on being satisfied of the fact of his minority, shall appoint a proper person to be guardian for the suit for such minor.”
Cl. (3) says:
“Such application shall be supported by an affidavit verifying the fact that the proposed guardian has no interest in the matters in controversy in the suit adverse to that of the minor and that he is a fit person to be so appointed.”
R. 4 is as follows:
“Any person who is of sound mind and has attained majority may act as next friend of a minor or as his guardian for the suit provided that the interest of such person is not adverse to that of the minor and that he is not, in the case of a next friend, a defendant, or, in the case of a guardian for the suit, a plaintiff.”
Under these rules the Court has to see that the next friend or the guardian-ad-litem has no interest adverse to that of the minor. Where a suit is brought against a minor, an application has to be made under R. 3 for the appointment of a guardian-ad-litem for the minor, and the application has to be made by the plaintiff or on behalf of the minor supported by an affidavit that the proposed guardian has no interest adverse to that of the minor and the Court on being satisfied that the proposed guardian has no interest adverse to that of the minor may appoint the person proposed as guardian-ad-litem for the suit. Where there is a guardian appointed either under the Guardians and Wards Act or under a will such guardian should be appointed as guardian for the suit, unless the Court is satisfied that the person is unfit or has an interest adverse to that of the minor in the matters in controversy in the suit. It is the duty of the Court to be satisfied that the interests of the person proposed are not adverse to those of the minor. If in the course of the trial it transpires that the guardian-ad-litem has an interest adverse to that of the minor, the Court would not be justified in allowing the guardian to act for the minor but should remove him and appoint some one else who has no interest adverse to that of the minor as guardian for the suit. The question is complicated by the peculiar principle of Hindu Law which permits a Hindu father to incur debts which would bind him as well as his sons. The question really is, if in a suit for the recovery of a debt incurred by the father, his minor son is made a party, is it illegal in all cases to appoint the father guardian-ad-litem for the minor, and is the decree obtained against the son a nullity? To hold that the father's interest is always opposed to that of the son whenever a suit is brought against the father and son for enforcement of a debt incurred by the father would result in the father being ineligible to be the guardian-ad-litem of his minor son whatever may be the nature of the debt, and however beneficial it may have been to incur it. There are occasions when the father has to incur debts to save the family property or to benefit the estate. In such cases it cannot be said that the father's interests are opposed to those of the son. To hold otherwise would not only be unjust but would not be in the interests of the minor, and R. 3 does not warrant laying down such a hard and fast rule. O. 32, R. 3, Cl. (3) says:
“that the proposed guardian has no interest in the matters in controversy in the suit adverse to that of the minor and that he is a fit person to be so appointed.”
First he must have an adverse interest and secondly the adverse interest must be in the matters in controversy in the suit. It is only then that he would not be a fit person to be appointed guardian-ad-litem if in other respects he is a fit person to be appointed.
In many cases it may not be possible before the written statement is filed for the Court to say whether the father has any interest adverse to that of the son. The appointment of a guardian-ad-litem is before the written statement is filed and if on the face of the pleadings and in the light of the plaintiff's affidavit or the affidavit put in on behalf of the minor, there is no reasonable suspicion of there being an interest adverse to that of the minor, the appointment of the father as guardian-ad-litem is not illegal. It is only after the written statement is put in that the Court would have some knowledge of the nature of the defence put forward on behalf of the minor. If nothing transpires in the course of the trial to show that the father has an interest adverse to that of the minor it is difficult to see how the ‘decree obtained against the minor could be said to be illegal.
The second question is, can the executing Court entertain an objection to the execution of the decree against a minor on the ground that the guardian-ad-litem had an interest adverse to that of the minor in the suit? If the decree is not illegal on the face of it, is it open to the executing Court to go behind it? Where the illegality of the decree is not apparent on the face of it, to hold that the executing Court could entertain an objection to the validity of the decree would open the door to frivolous objections and to wasting the Court's time in embarking upon an enquiry which would be not only futile but which would impede the course of justice. It is open to the minor to have the decree set aside in a properly framed proceeding, but he cannot be allowed to resist execution by pleading in the executing Court the illegality of the decree on the ground that his guardian-ad-litem's interests were adverse to him in the matters in controversy in the suit in which the decree was passed.
The case where the minor was never represented at all in the suit in which the decree was obtained stands on a different footing as there can be no decree against a person who is not a party to the suit, for instance, where no guardian-ad-litem is appointed to represent a minor in a suit or where there is a guardian appointed under the Guardians and Wards Act and another person is appointed guardian-ad-litem and a decree is obtained against the minor. In such cases there could be no decree against the minor as he was not properly represented in the suit, and objection could be taken to execution on the ground that there is no decree against the minor and the executing Court will be bound to see whether there is or there is not a decree againt the minor, in the same way as when a decree against one AB is sought to be executed against another AB as if the decree is against the latter. A person against whom a decree is sought to be executed is entitled to say to the executing Court that he is not the judgment-debtor though he bears the same name as the judgment-debtor and the decree is not against him but against some one else; and the Court would have to decide before levying execution whether the decree is being sought to be executed against the right person or not and if he is the right person he cannot be heard to say that the decree was not properly obtained against him. If he impeaches the decree as having been obtained by fraud or that it is invalid for other reasons, his remedy is by a proper proceeding to set aside the decree and not by resisting execution on the ground that it was obtained against him by perpetration of fraud or is otherwise illegal. The case of a Hindu mother stands on the same footing as that of the father. To hold that in all cases where a debt incurred by the mother is sought to be recovered from the son's property the mother's interest is adverse to that of the minor and that she is ineligible to be his guardian is not warranted by the Hindu Law. Such a sweeping proposition would not only be unjust but might work hardship in many cases. Each case would depend upon its circumstance.
There are a number of decisions on the points raised and all of them cannot be reconciled. Mr. Lakshmanna for the appellant relies upon Arunachalam Chettiar v. Suban Sahib as supporting his contention. In that case Madhavan Nair, J., held that the decree passed against a minor who was not represented in the suit by a guardian was void and incapable of execution and hence in execution proceedings objections could be raised regarding the legality of the decree. In that case, the decree was obtained against a minor and he was not properly represented in the suit. On behalf of the cerditor the contention was raised that the executing Court could not go behind the decree or entertain an objection to its validity. Madhavan Nair, J., following Jungli Lal v. Laddu Ram Marwari observed that the decree was a void decree and might be disregarded altogether without taking any proceedings to set it aside. In Bhimaji v. Hussain Saheb Sadasiva Aiyar and Spencer, JJ., held a decree obtained against a minor represented not by a guardian appointed for him but by another, though the Court acted in ignorance of the existence of the appointed guardian, was not binding on the minor. In that case, there was no question of the executing Court entertaining an objection to the validity of the decree. That was a suit in which the plaintiff represented by a certificated guardian sued to set aside the decree passed against him in a suit brought by the 1st defendant as plaintiff on a mortgage bond executed by the plaintiff's mother. Sadasiva Aiyar, J., after reviewing the authorities held that there was no legal representation of the minor in the former suit and decreed the second suit. Spencer, J., held following the Privy Council decision in Rashid-un-nisa v. Mahomed Ismail Khan that a decree obtained against a person who was not properly represented on the record was void and without jurisdiction against such person. In Rashid-un-nisa v, Mahomed Ismail Khan a married woman was appointed guardian-ad-litem of a minor sister. Under the Civil Procedure Code of 1882, Sect. 457, a married woman could not be appointed guardian-ad-litem. The Privy Council held that the appellant was never a party to any of the suits in the proper sense of the term. Her sister Ulfat-un-nisa was a married woman and therefore was disqualified under Sect. 457 of the Code of Civil Procedure from being appointed guardian for the suit and Mauladad's interest was obviously adverse to that of the minor. In that case there was no question of the executing Court sustaining an objection to execution on the ground of the decree being void. After execution proceedings in the previous suit, a suit was brought for setting aside the decree and execution proceedings and the second suit was decided in favour of the minor. In Chellappa Goundan v. Masa Naiken, it was held by Odgers and Hughes, JJ.
“A minor represented in a suit by a guardian-ad-litem whose interest is adverse to that of the minor, is not legally represented at all”
following Rashid-un-nisa v. Mahomed Ismail Khan. In that case, a suit ‘was instituted against a Hindu father and his sons on a mortgage bond executed by the father and the father was appointed by the Court as guardian-ad-litem of his minor sons. A decree was passed against the entire mortgaged property which was sold in execution and purchased by the decree-holder. A suit was instituted on behalf of the minor sons by their mother as their next friend for a declaration that the decree and sale in the previous suit were invalid against them and their shares in the family property. Odgers, J., following Rashid-un-nisa v. Mahomed Ismail Khan observed: “Representation by a guardian whose interest is adverse is no representation at all” and again at page 84:
“I hold that the law goes to this length that a minor represented by a guardian whose interest is adverse is not legally represented at all. This is, I think, the result of the decision in Rashid-un-nisa v. Mahomed Ismail Khan.”
Hughes, J., also observed:
“It is clear therefore the interests of the father were adverse to those of his sons and the sons were not legally represented in the suit and the decree does not bind them.”
In Ramanunni Kurup v. Raman Somayajipad Krishnan and Ramesam, JJ., observed:
“Considering that he was the person who had executed the promissory note on which the suit was brought against the minor he would have been an unsuitable guardian in any event as his interests would clash with the minor's interests”
and on the facts of the case held:
“the appointment is thus vitiated by fraud and is of no legal effect and the case must be treated as having been proceeded with without a legally appointed guardian-ad-litem. The decree and the subsequent sale are therefore not binding on the plaintiff.”
In that case the question of raising objection to the validity of the decree in the executing Court did not arise for consideration. That was a suit by a person-after attaining majority for a declaration that a mortgage was not supported by consideration to a certain extent and the decree on the mortgage was obtained by fraud inasmuch as he was not represented in the suit on the mortgage by a proper guardian, and the Court guardian appointed for him acted with gross negligence in the conduct of the case and that the decree was not binding on him and the sale in execution of the decree should be set aside as invalid. In CM. A.No 269 of 1927, my brothers Kumaraswami Sastriar and Wallace, JJ., held that it was open to a minor to prove that the interests of the guardian-ad-litem were adverse to him and that he was prejudiced thereby and if he did that the decree would not bind him.
In Rajah of Kalahasti v. Muni Venkatadri Rao Garu, it was held by Odgers and Curgenven, J J.:
“The general rule that an executing Court cannot enquire into the validity of the decree does not apply to a case in which the execution of the decree would involve the infraction of a provision of law enacted in the public interest. It is the duty of the Court, however and whenever such a consequence becomes apparent to it, to stay its hand.”
This decision does not really touch the present question.
It is well settled that a decree could be impeached on the ground of illegality or on the ground of a party not being represented at all, in a properly framed proceeding for the purpose. But the question is whether an executing Court can entertain an objection to execution on the ground that the decree has been obtained by fraud or that it is an illegal one. Some of the decisions go to the length of saying that if a decree is a nullity it could not be executed and the executing Court could therefore entertain an objection on the part of the judgment-debtor that the decree is a nullity. As I have already observed it is open to a person against whom a decree is sought to be executed to show that he was not a party to the suit either because he was not a party eo nomine or that he was a minor at the time when the decree was obtained and he was not re-presented by a guardian at all, or that the guardian appointed by the Court was not a guardian who in law could be a guardian or there was a proper guardian and the plaintiff instead of making him the guardian-ad-litem made another person guardian-ad-litem. But where the decree could only be attacked on the ground of some illegality such as the guardian appointed had an interest adverse to that of the minor or that he was negligent in protecting the interests of the minor the question arises whether the executing Court could entertain an objection to execution on those grounds.
The contention on behalf of the respondent is that the executing Court is not entitled to go behind the decree but it should execute the decree as it stands, and any objection on the score of illegality or fraud or negligence of a guardian, or any other objection to the decree should be urged in a proceeding framed for the purpose of setting aside the decree and should not be entertained by the executing Court. There are several decisions which support this contention.
In Kalipada Sirkar v. Hari Mohan Dalal Mookerji and Cuming, JJ., after an exhaustive examimation of the authorities held:
“the Court executing the decree must take the decree as it stands and has no power to go behind the decree or entertain an objection to the legality or correctness of the decree. The validity of a decree cannot be questioned in execution proceedings on the ground that us, the lunatic plaintiff was not properly represented by a competent next friend in the suit, no decree for costs could have been made against him. A proceeding to enforce a judgment is collateral to the judgment, and therefore no enquiry into its regularity or validity can be permitted in such a proceeding.”
In Zemindar of Ettiyapumm v. Chidambaram Chetty a Full Bench of this Court held that an objection on the ground of want of territorial jurisdiction must be taken in the suit itself in which the decree was passed and must not be considered and cannot be allowed in execution proceedings. It might be said that Sect. 21 of the Code of Civil Procedure provides that the objection to jurisdiction must be taken at the earliest opportunity, as it reads:
“No objection as to the place of suing shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of First Instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement and unless there has been a consequent failure of justice.”
This case does not directly bear on the point. In Sami Mudaliar v. Muthiah Chetti, 4th defendant died after the preliminary decree and before the final decree in the mortgage suit, His legal representative was not brought on record in the application for a final decree. On an application filed by the plaintiff for transfer of the decree for execution to another Court, notice was issued to the 5th respondent, 4th defendant's son, to show cause why he should not be brought on as legal representative of the father. The 5th respondent did not appear. The decree was transferred for execution and certain properties were brought to sale. The 5th respondent filed a suit for a declaration that the decree was not binding on him and for an injunction restraining the plaintiff from executing the decree. It was held that the decree against the deceased was a nullity and that that was not a matter which could have been gone into in execution, but the 5th respondent was not precluded from setting up the plea by reason of his omission to do so in 1916 when notice of an application for transfer was served on him and that the suit brought by him was competent. The learned Judges observed at page 297:
“it seems therefore clear that as far as this Court is concerned the executing Court cannot go behind the decree.”
In Vaithilinga Mudaliar v. Chidambaram Pillai, it was held that the Court executing the decree must take the decree as it stands and has no power to go behind the decree or entertain objections as to the legality or correctness of the decree. They relied upon the observations of Sir John Wallis, C. J., in Zamindar of Ettiyapuram v. Chidambaram Chetty:
“This is the view taken in Hari Govind v. Konherrao Deshpande and Kalipada Sirkar v. Hari Mohan Dalai is also a recent authority for the proposition that the Court executing the decree cannot go behind it.”
In Lahore Bank v. Ghulam Jilani(5), Sir Shadi Lal, C. J., and Le Rossignol, J., held that:
“an executing Court had no jurisdiction to criticise or go behind the decree; all that concerns it is the execution of it. If the decree should be annulled, that is not the function of the executing Court.”
and they followed Kalipada Sirkar v. Hari Mohan Dalal and Rashid-un-nisa v. Mahomed Ismail Khan(6) and dissented from Juugli Lall v. Laddu Ram Marwari(7).
Though in Kalipada Sirkar v. Hari Mohan Dalai it was broadly laid down that “an executing Court could not go behind the decree but should take it as it stands,” yet in Gora Chand Haldar v. Prafulla Kumar Roy(8) a Full Bench consisting of Walmsley, C. C. Ghosh, Suhrawardy, B.B Ghose and Duval, JJ., felt the necessity for modifying the broad proposition that:
“the executing Court is bound to see whether there is a decree capable of execution and whether the decree is against a person against whom execution is sought and also to see whether on the face of it the decree is one which is capable of execution against the person sought to be proceeded against.”
Supposing a decree gives a personal remedy against a woman, would the executing Court be justified in executing it if such a decree is on the face of it illegal for, the law prohibits the passing of a decree against a woman so as to make her person liable for arrest. Walmsley, J., who delivered the judgment of the Full Bench observed at page 173:
“I think it may be said that the correct view, and the view for which there is a strong current of authority, is that where the decree presented for execution was made by a Court which apparently had not jurisdiction, whether pecuniary or territorial, or in respect of the judgment-debtor's person, to make the decree, the executing Court is entitled to refuse to execute it on the ground that it was made without jurisdiction. Within these narrow limits I think that the executing Court is authorized to question the validity of a decree.”
The observation that the Court which passed the decree had not territorial jurisdiction is a matter which could be raised before the executing Court is directly opposed to the decision of the Full Bench in Zamindar of Ettiyapuram v. Chidambaram Chetty.
In Jungli Lall v. Laddu Ram Marwari, it was held by a Full Bench of the Patna High Court:
“when at the time of the passing of a final decree in a mortgage suit, one of the judgment-debtors was dead and his representatives have not been brought on the record, it is open to such representatives to object to execution of the decree on the ground that the decree is a nullity, and the proposition that an enquiry into the validity of a decree is outside the functions of an executing Court is subject to the proviso that there is a valid decree which it can execute. A void decree ought to be disregarded without any formal proceeding to set it aside.”
The learned Judges proceed upon the footing that a void decree is no decree at all and if a judgment-debtor against whom a decree is sought to be executed was not represented at the time of the passing of the decree, there is no decree against him and what is spoken of as a decree is a nullity. In A. S. Nos. 347 and 338 of 1919, Sadasiva Aiyar, J., observed with regard to the validity of a decree obtained against a minor represented by a guardian whose interests were adverse to those of the minor.
“I am prepared to go further and hold that even if it was adverse, once the Court had appointed her as guardian on the affidavits and facts proved by the affidavits before it, all proceedings against the minor judgment-debtor with the guardian so appointed are valid against the minor till set aside on proper and sufficient grounds in appropriate proceedings taken by or on behalf of the minor.”
He and Napier, J., were of opinion that a decree should be considered valid till it was set aside in appropriate proceedings.
In Kuppuswami Ayyangar v. Kamalammal, it was held by Oldfield and Phillips, JJ., that where a mother acting as guardian of her minor sons mortgaged the property and a decree on the mortgage was passed against the minors represented by the mother as guardian-ad-litem and the properties sold in execution and the sons subsequently sought to recover possession of the properties alleging that their mother was not competent to represent them in the previous suit as her interest was adverse to theirs the decree against the minors was not a nullity and had to be set aside and that a suit was consequently maintainable. In Karri Bapanna v. Sunkari Yerramma it was held that
“the defendant is entitled to plead in defence invalidity of the decree obtained against him during his minority on the ground of gross negligence of his then guardian. Such a plea is not untenable because he has not brought a regular suit to have the decree set aside.”
This does not affect the question whether such a plea could be raised in execution proceedings. In Subramanya Ayyar v. Vaidyanatha Ayyar Oldfield, J., held that a”
decree passed after the death of the defendant and before his legal representative was brought on the record was a nullity. The result of the authorities is, if the decree is a nullity, the executing Court can ignore it; if the decree contravenes any specific provision of the law then also the executing Court can ignore it; but where the validity of the decree is attacked on the ground that some fraud was perpetrated in the course of the suit or that there was negligence on the part of the guardian of a minor or that the guardian had some interest adverse to that of the minor the executing Court cannot entertain an objection to execution, but the defendant is entitled to have the decree set aside in a proper proceeding.”
It is urged that the appointment of father or mother as guardian whose interest is adverse to that of the minor is a violation of the specific provision of the statute as contained in O. 32, Rr. 3 and 4, and therefore the decree must be considered as a nullity. The decree against the minor with such guardian-ad-litem is not a nullity. It is also urged that it would be throwing on the minor an unnecessary and unbearable burden by making him prove in a separate proceeding that the decree obtained against him is not valid without allowing him an opportunity to show in the execution proceedings themselves that the decree is one which could not be executed against him. My view is that where a decree is obtained against a Hindu minor boy with the father or mother as guardian-ad-litem in a suit on a debt contracted by the father or mother the decree obtained against him is not a nullity but it is liable to be set aside at his instance in a proper proceeding and the executing Court should not be asked to try a suit in execution proceedings. As there is a conflict of decisions on this point, I agree to the reference.
[This appeal came on for final hearing on 1st November, 1928 before a Full Bench constituted as above.]
OPINION
In this case the adoptive mother of a minor executed in 1918, though the exact date is not given, a promissory note purporting to act as his guardian and to execute it on his behalf. A suit was brought, O. S. No. 348 of 1921, on the promissory note and the plaintiff applied to have the adoptive mother appointed as the guardian-ad-litem of the minor, notwithstanding the fact that she was the executant of the promissory note; and she was so appointed. She raised no defence to the suit and an ex parte decree was passed; before the decree was passed the natural father had been put in as guardian of the minor and no steps were taken to inform the Court of the existence of the natural father as guardian. But no attempt appears to have been made to substitute him for the adoptive mother as guardian-ad-litem in the suit, and he was not so substituted. In these circumstances, the learned Judges propounded three questions for the opinion of a Full Bench.
The first is this:—
“Whether the appointment of a person who executed a document or enters into a transaction as the guardian-ad-litem of a minor is valid in a suit on the document or transaction?”
………what appears to be meant is this: When a person has executed a document or entered into a transaction on behalf of a minor as his guardian, can that same person be validly appointed guardian-ad-litem of the minor in a suit brought against him on the document or transaction in question?
It seems to us that this matter cannot be treated as a pure question of law. The appointment of the guardian-ad-litem purported to be an exercise of judicial discretion and it seems to us impossible to say that the Court had no discretion in any conceivable case to appoint such a person and that such an appointment would necessarily be void without any enquiry into the particular circumstances of the case. The Code does not say so, and we do not think we can possibly invent such a judicial rule for ourselves. Indeed cases can be imagined in which a Court with the facts before it might think that the guardian and executant of the document was quite a suitable person to conduct the suit. Take for instance the case which was put in the course of the argument where the defence was going to be that the guardian when she executed the document was under the influence of fraud or coercion on the part of the payee, No one could suggest that in that event her interest could be said to be necessarily adverse to the minor merely because she signed the actual document herself. That in a vast majority of cases to appoint such a person would be wholly undesirable is manifest. In this case it probably was very undesirable. In our opinion that is a question of fact governed by no hard-and-fast rule of law and there is nothing either in the Code or in any of the authorities to lay down not merely that such a person should not as a rule be appointed but cannot in any circumstances be validly appointed.
The second question is this:—
“Whether the appointment of a person whose interests are adverse to those of the minor as his guardian-ad-litem renders the decree void against the minor or only voidable by him.
This as framed begs the very question raised by the first point because it assumes that any person in the position of the adoptive mother here had an interest which without evidence or further consideration must, ex hypothesi, be adverse to the interest of the minor. In our opinion it would be premature to decide this as an abstract question of law without a finding on a decision of fact directed to the express point that the interests of this guardian-ad-litem were adverse to those of the minor. At present all we have is the fact that a Court appointed her, which is prima facie a judicial expression of opinion that her interests were not adverse. The learned Judge, we presume was aware of, or his attention was drawn to, the provis ions of O. 32, R. 3, and he must have known the sole fact which is placed before us, namely, that the proposed guardian-ad-litem was herself the executant of the document. It may be that he failed to exercise a judicial discretion in coming to the conclusion that it was a proper step to appoint her, and that an Appellate Court might have so found if invoked on the ground that on the materials before the learned Judge who appointed her there was everything to show that she was unfit and nothing to show that she was fit. That has not been done. In these circumstances, we cannot see our way to answer the second question any more than the first as involving a mere point of law.
Still less is it possible at this stage to deal with the third question put up, whether objection could be taken in execution that the decree is void, because that would depend on the determination of the other two questions which we have held not to be questions of law but to require decisions of fact which do not exist.
K.S.DReference answered only with regard to one question.