Baldeo Das vs Gobind Shankar on 23 July, 1885

Allahabad High Court
Baldeo Das vs Gobind Shankar on 23 July, 1885
Equivalent citations: (1885) ILR 7 All 914
Author: W C Petheram
Bench: W C Petheram, Tyrrell


W. Comer Petheram, C.J.

1. I think that this application must be rejected. It is an application under Section 622 of the Civil Procedure Code, against an order of the Court of the Subordinate Judge, in which that Court refused to exercise a jurisdiction vested in it by law. The plaintiff brought an action against a particular person who did not appear in the suit. A third person came forward, who is the applicant before us, and claimed to be put on the record as defendant. The Subordinate Judge refused to admit him to defend the suit. I think he had no power to make that entry on the record. This third person urged that he had a right to come in under Section 3 of Act XL of 1858. Now, the application is based on the fact that the applicant has obtained a certificate, and no person, by Section 3 of Act XL of 1858, is entitled to institute or defend any suit for a minor unless he has obtained a certificate under the Act. The latter part of that section makes a certificate necessary, and by implication it gives him the right when he has obtained the certificate. Subsequent to the passing of Act XL of 1858, the Civil Procedure Code was passed; but, after looking at Section 464 of that Code, it would appear that we must look at this application as if these provisions, from Section 442 to Section 462, did not exist. Now, the words contained in Section 3 of Act XL of 1858, and the prohibition therein contained, cannot be made larger than they are. After a person has obtained a certificate, he may take the conduct of the minor’s estate in his hands, and bring and defend suits. Supposing that this third party is right in his claim, he may ask to defend the suit, not in his own name, but as guardian of the minor.

2. The Judge had no power to pass the order he did; but we cannot interfere in revision, and this application must be rejected with costs.

Tyrrell, J.

3. I agree with the learned Chief Justice’s view of this application. I think also that it is very questionable whether any application to this Court would lie as made before us. The application to the lower Court, if made under Section 32 of the Act, is not appealable. There is no appeal under Section 588, but there is the question whether the order of the lower Court could not be considered a decree, within the meaning of the definition Section (2) of the Civil Procedure Code. The petitioner claimed to appear as guardian. The Court decided he had not that right. That order decided his position in the suit. It seems to me that an appeal might have been preferred, and for this reason also this application must be rejected with costs.

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