JUDGMENT
Birendra Prasad Sinha and B.P. Griyaghey, JJ.
1. This application in revision has been referred to a Division Bench by an order of a learned Single Judge dated the 8th October, 1982.
2. This is an application by the plaintiffs-respondents who obtained an ex parte decree against the minor son and minor daughter of one Qudrat Mian in Title Suit No. 290 of 1968.
3. The title suit was filed by the petitioners’ father, Md. Sayeed, in the court of the Munsif, Purnea, for a declaration of title and recovery of possession. The opposite party Nos. 1 and 2, who were minors, were sued through their mother, Bibi Samima Bano (opposite party No. 3), the natural guardian. Notices meant for the minors seem to have been served on their guardian, namely, their mother, but she did not take any step on behalf of the minors in the suit. The learned trial court thereupon appointed one Bhola Nath Burman, Advocate, as the guardian of the two minors. On the 4th August, 1976, the title suit was decreed ex parte. It may be stated here that the pleader guardian, Bhola Nath Busman, also did not take any step in the suit and did not even file any written statement. The said minors thereafter filed Miscellaneous Case No. 8 of 1977 through their next friend, Abdul Aziz, who was their maternal uncle under Order 9, rule 13 of the Code of Civil Procedure to restore the suit to its original number stating, inter alia, that due to the gross negligence of the said pleader guardian they could not defend the suit. It was also stated that on the 9th January, 1977, their maternal uncle, Abdul Aziz, came to know from one Ramanand Mishra that the suit had been decreed ex parte. On the 11th February, 1977, the above mentioned miscellaneous Case No. 8 of 1977 was filed.
4. The petitioners contested the miscellaneous case and contended that the miscellaneous case, having been filed by the next friend, was not maintainable and that the miscellaneous case was barred by limitation. The learned Munsif held that the case was maintainable, but he found that the same had been filed after the period of limitation and, therefore, dismissed it. The opposite party Nos. 1 and 2 filed an appeal which was numbered as Miscellaneous Appeal No. 15 of 1978 and was disposed of by the Third Additional Subordinate Judge, Purnea. The learned Subordinate Judge, after hearing the parties, came to the conclusion that the mistake was committed by the court inasmuch as the pleader guardian was not lawfully appointed by the court and, therefore, the question of limitation did not arise. The miscellaneous appeal was, therefore, allowed and the ex parte decree passed in Title Suit No. 290 of 1968 was set aside.
5. Mr. Das, learned Counsel appearing on behalf of the petitioners, has contended that the miscellaneous case was barred by limitation and the learned lower appellate court has erred in holding that the question of limitation did not arise in the case. He also contended that the miscellaneous case was not maintainable at the instance of the next friend, Md. Aziz, maternal uncle of the minors.
6. We have stated above that the two minors were put under the guardianship of their mother by the plaintiffs, but she did not take any step in the suit on their behalf. It was thereupon that the court appointed a pleader guardian named Bhola Nath Burman to represent the minors. Order 32, Rule 3(4) of the Code of Civil Procedure (hereinafter referred to as ‘the Code’) provides that “no order shall be made on any application under this rule except upon notice to any guardian’ of the minor appointed or declared by an authority competent in that behalf, or where there is no such guardian, upon notice to the father or where there is no father, to the mother, or where there is no father or mother, to other natural guardian of the minor….and after hearing any objection which may be urged on behalf of any person served with notice under this sub-rule.” There is nothing on the record to show that any notice was given to the mother guardian of the minors to show cause as to why she should not be discharged for not taking any interest in the suit on behalf of the minors. What happened was that the court, after having found that the mother was not taking interest, straightway appointed a pleader guardian to represent the minors. Learned Munsif could not do it. It was incumbent upon him to send a notice to the mother to show cause why she should not be discharged. The failure to follow the procedure laid down in Order 32, Rule 3(4) of the Code rendered the appointment of the pleader guardian illegal. The trial court proceeded on the presumption that a proper notice had been served upon the pleader guardian and since the pleader guardian was not taking interest in the case, an ex parte decree was passed against the minors. In a case where the appointment of the pleader guardian itself was illegal, any notice having been served upon him cannot be said to be a valid notice. Therefore, it was a clear case of absence of notice to the minors. Order 9, Rule 13 of the Code provides that if the Court was satisfied that the summons was not duly served, or that the person was prevented by sufficient cause from appearing when the suit was called on for hearing, the court could set aside the decree or an application made in that behalf. In the facts and circumstances of the present case, it has to be found that there was no service upon the minors and also that they were prevented from appearing in the suit at its hearing. In such a situation, the learned Subordinate Judge was right in setting aside the ex parte decree.
6. learned Counsel for the petitioners contended Order 9, rule 13 of the Code was not the proper remedy for the minors and that they could have filed a suit for setting aside the decree. He relied upon a Single Judge decision of this Court in Rambadan Rai and Ors. v. Paltan Paswan and Ors. 1977 B.B.C.J., Page 4/n. The decision has not been fully reported nor the case, number has been given in the report. The placitum shows that in a case where the minor was not properly represented and an ex parte decree was passed, an application under Order 9, rule 13 of the Code for setting aside the ex parte decree was not maintainable at the instance of the minors. Another Bench decision of this Court, to which our attention was drawn by the learned Counsel for the petitioners himself, is the case of Harihar Prasad Singh v. Babu Edal Singh 2 Patna Law Times 11. which has taken a contrary view. In that case, it was held that the minor could seek his remedy by means of an application under Order 9, rule 13 of the Code. In our opinion also, Order 9, Rule 13 of the Code provides a proper remedy even to a minor in a case where notices have not been properly served or where a minor was prevented by any sufficient cause from appearing in the suit. There may be another remedy available to him, but the remedy under Order 9, rule 13 of the Code cannot be said to be barred in such circumstances.
7. The next contention was that the application under 9, Rule 13 of the Code was barred by limitation. According to Article 123 of the Limitation Act, the period of limitation for setting aside a decree passed ex parte by filing an application is thirty days Referring to paragraph No. 7 of the cross-examination of A. W. 4, Md. Aziz, the learned trial court has stated that he had knowledge about the ex parte decree, at least four months before the filing of the application under Order 9, Rule 13 of the Code. A.W. 4 in paragraph No. 2 of his examination-in-chief stated that he came to know about the ex parte decree thirteen months before the 9th February, 1978, the date on which he was examined in court. In paragraph No. 7 of his cross examination, the witness stated that it was correct to say that four months after knowing about the ex parte decree, he had gone to the court. The learned Munsif seems to have misread the evidence of A. W. 4 and has not correctly appreciated it. The witness had stated that he got knowledge about the ex parte decree thirteen months before the 9th February, 1978, which takes it back to January, 1977. In the application it was alleged that the date of knowledge was the 9th January, 1977. It is well established that an application under Order 9, rule 13 of the Code can be filed even within thirty days of the date of the knowledge of the ex parte decree. The application seems to have been filed within thirty days of the date of knowledge of the ex parte decree, In our opinion, this application was not at all barred by limitation and the learned Munsif has come to a wrong finding on the basis of misappreciation of the evidence of A.W. 4. We are of the opinion that the learned Subordinate Judge rightly allowed the miscellaneous appeal and set aside the ex parte decree passed by the learned Munsif.
8. The result is that this application is dismissed, but without costs.