Marimuthu Pillai vs Krishna Pillai And Ors. on 29 November, 1928

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Madras High Court
Marimuthu Pillai vs Krishna Pillai And Ors. on 29 November, 1928
Equivalent citations: AIR 1929 Mad 704, 117 Ind Cas 144
Author: Phillips


Phillips, J.

1. In this case, the petitioner paid money into Court with a view to setting aside an execution sale. His petition was ordered but in appeal the appellate Court held that the order was bad, because notice had not gone to the judgment-debtor and ordered such notice to be given and the petition retried. When the petition came on for trial, the wife of the judgment-debtor appeared and asked to be appointed guardian of the judgment-debtor on the ground that the judgment-debtor became insane. The District Munsif found that the judgment-debtor was not insane and, that he was not dead, having been seen some nine months previously. Notwithstanding this, he appointed the wife as the representative of the judgment-debtor relying on an obiter dictum in Lala Gobind Prasad v. Judip Sahay A.I.R. 1925 Pat. 369. With all respect to the learned Judge, the course suggested by him that a person can be appointed to look after the affairs of an individual who has disappeared until his return or till his death can properly be presumed, does not seem to be warranted by law, if by this he means that such person could represent the individual in proceedings in Courts. There are specific provisions for appointing guardians or next friends, but none of these is applicable in the present case.

2. There is also provision for serving a person whose whereabouts cannot be traced and that clearly has not been done in this case. It is strange that this procedure should have been asked for; the wife who represents the judgment-debtor is evidently hostile to the petitioner, for in opposing him, she is apparently opposing her own interests, for if her husband still has a right in the property as suggested by the petitioner, she would be benefited by supporting the latter. The order of the District Munsif appointing the wife as representative and proceeding with the trial as if the judgment-debtor was properly represented in Court was one clearly without jurisdiction. The order of the Subordinate Judge confirming that of the District Munsif must be set aside and the petition remanded for fresh disposal after giving due notice to the judgment-debtor. The other question whether the petitioner is a person who has an interest in the land, is a point on which there has been some difference of opinion in this Court and must depend upon the evidence in the case. I therefore express no opinion on this question. Costs in this petition will be paid by the respondents.

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