I confess that my mind was wavering in the course of the argument in this case. But I have come to the conclusion that an opportunity should be given to the Lower Court to reconsider its decision. The facts are somewhat peculiar. The application made to the Lower Court by the present petitioner who is the 4th defendant was for a review of the judgment in a suit filed by the plaintiff who had been defeated in a claim enquiry, in which it was held that the minor 4th defendant's predecessor-in-title was entitled to sell certain properties in execution of a decree. The minor was represented in the suit by a Court clerk who was appointed as guardian. It is found that there is no proof of any negligence on his part, but it is pointed out that before he was appointed as guardian, no notice went to the natural guardian of the minor or the person with whom he was living, namely, Nachiappa Chetti. No doubt Nachiappa Chetti himself was originally proposed as guardian and the finding is that he declined to receive the process issued to him calling upon him to be the guardian for the minor. Even assuming that he was unwilling to act as guardian for the minor, still I think it was necessary that notice should have gone to him under cl. 4 of R. 3 of O. 32 of the Code of Civil Procedure, when the appointment of the Court guardian was proposed. He would possibly have been in a position to suggest somebody else as guardian, and without such a notice to the person with whom the minor was living or to the natural guardian, it would be almost impossible for the Court to come to the conclusion that there was no other person willing to act as guardian, which alone would enable the Court to appoint an Officer of the Court as guardian. It is said that although the minor was represented by a pleader appointed by the Court as guardian he took no steps whatsoever to defend the minor's interest. It is impossible to believe that when he had already succeeded in a claim enquiry he had no defence at all in a suit instituted by the plaintiff for the purpose of practically setting aside that order, more especially as the burden will be on the plaintiff to show that he was entitled to the property and not the judgment-debtor of the minor. In these circumstances, it is difficult to say that the minor was not prejudiced by the want of notice to the person with whom he was living, namely, Nachiappa Chetti. My attention was drawn by the learned Pleader for the respondents to the decision of the Privy Council reported in Walian v. Banke Behari Pershad Singh. That was distinguished in a case reported in Bhagwan Dayal v. Paratn Sukh Das to which my attention was drawn by the learned Pleader for the petitioner. I think the distinction drawn in the case in I.L.R, 37 All., 179 is correct and the present case is practically on all fours with the case in I.L.R, 37 All., 179. The learned Judge in the Court below has misdirected himself by thinking that no such notice was necessary because the guardian was appointed under R. 4. But R. 4 and the other rules as to the person to be appointed as guardian must be read with the provisions of R. 3 which provides for the applications to be made for the appointment of a guardian. Before a person can be appointed as guardian, I think it is necessary that the provisions of R. 3 should be complied with. In this view, I think that the proper order to make is to remit the application for review to the Lower Court in order that it may consider the application afresh in the light of the observations above made. Costs of this petition will be provided for by the Lower Court in the final order.
Chinna Nachiappa Chetti is appointed guardian of the minor for the purpose of these proceedings.
V. R.
Petition remanded.