JUDGMENT
Lakshmikanta Jha, C.J.
1. This appeal arises out of a suit for a declaration that an ex-parte mortgage decree obtained against the plaintiff, while he was a minor, is not binding on him. The trial Court decreed the suit and its judgment has been affirmed by the Court of appeal below. Hence this second appeal by the defendant.
2. Three brothers, Ajodhya, Jugal and Bhusan, constituted at one time a joint Mitakshra family. The plaintiff’s case is that Jugal left his home sometime in the year 1927 and since then he has not been heard of. This case of the plaintiff has been accepted by the Courts below. In April 1934, Ajodhya and Bhusan executed an instalment mortgage bond in favour of the defendant-appellant, mortgaging a property in which Jugal had interest as a member of the joint Mitakshra family. This mortgage bond was not executed by anyone on behalf of the minor nor was there any recital as to the purpose for which the loan was raised.
In 1941 the defendant instituted Mortgage Suit No. 21 of 1941 against Ajodhya, Bhusan and the plaintiff as a minor under the guardianship of Ajodhya. Ajodhya or Bhusan did not file any written statement, nor did Ajodhya take any step on behalf of the minor. The Court, therefore, appointed one Mr. Phanindra Nath Chakravarty, a pleader, as guardian on behalf of the minor by his order dated the 14th July 1941. It appears that the guardian-ad-litem wrote a registered letter to Ajodhya asking him to give instruction for filing written statement, but he did not respond, and thereupon the pleader-guardian reported to the Court that he could not get any material for filing a written statement and prayed that the plaintiff may be put to the strict proof of his case. He, however, did not file any written statement calling upon the plaintiff to prove his case against the minor.
The suit was taken up ex parte for hearing on the 11th November 1941 and decreed. Later on, execution was taken out and the property was sold and auction-purchased by the decree-holder in Execution Case No. 63 of 1943. On attaining majority, the plaintiff instituted the suit on the 19th January 1946 for a declaration that the decree was obtained against him on account of the gross negligence on the part of the guardian, and, as such, it is not binding on him. The Full Bench in ‘KAMAKSHYA NARAIN SINGH v. BALDEO’, 27 Pat 441 (FB) held:
"A decree passed against a minor can be avoided by him on attaining majority on the ground of gross negligence on the part of his next friend or guardian-ad-litem by bringing a subsequent suit..............." Therefore, in view of the Full Bench decision the present suit is maintainable. The only question, therefore, left for decision is one of fact, namely, whether the guardian was guilty of gross negligence. The learned Subordinate
Judge, on a review of the materials before him, has held that the guardian-ad-litem did not act properly in looking after the interest of the minor in that suit. On this finding, I do not think we shall be justified in setting aside the decision of the Court of appeal below, which, in my opinion, has fully analysed the evidence in the case. The appeal is accordingly dismissed with costs.
Ahmad, J.
3. I agree.