The Judgment of the Court was as follows:—
This appeal arises with reference to an objection filed under sec. 47 of the Code of Civil Procedure by certain judgment-debtors to the effect that two of these judgment-debtors namely, Biswanath Baral and Baikuntha Nath Baral were not properly represented in the rent suit the decree of which was being executed.
It is admitted that the father of these persons is alive and, this being the case, it follows that the father must be regarded as the natural guardian of the minors within the meaning of Sec. 148(h) of the Bengal Tenancy Act. It appears, however, from the record of this case that in the rent suit the brother of these minors, Raghunath Baral, was appointed as their guardian although his consent to act in this capacity was not obtained. Or. 32, r. 4(3) of the Code of Civil Procedure provides that no person shall without his consent be appointed guardian for a suit. Sec. 148(h) of the Bengal Tenancy Act provides for an exception to the above rule in favour of a natural guardian and this section, accordingly, provides that the Court may serve on the natural guardian of a minor Defendant in a suit for arrears of rent a notice informing him that he will be treated as the guardian of such Defendant in respect of such suit, unless he appears and objects within a specified time. It is, however, clear that only a natural guardian may thus be appointed without his consent to act as a guardian of the minor. If a person who is not the natural guardian is so appointed without his consent being taken, it necessarily follows that the minor concerned cannot be regarded as being properly represented in that suit.
Having regard to the above considerations I must hold that the minors Biswanath Baral and Baikuntha Nath Baral were not properly represented in Rent Suit No. 2626 of 1934 and the decree in that suit is not binding against them. It, therefore, follows that the objection raised on behalf of these two minors must prevail and the decree can only be executed as a money decree against the other Defendants in the rent suit.
This appeal is, accordingly, allowed with costs in this Court and in the lower Appellate Court.
The hearing-fee in this Court is assessed at two gold mohurs.
C.C