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Bombay High Court
Vishnu Narayan vs Dattu Vasudeo on 13 February, 1907
Equivalent citations: (1907) 9 BOMLR 1099
Author: Chandavarkar
Bench: Chandavarkar, Pratt


JUDGMENT

Chandavarkar, J.

1. Both the lower Courts have found that the fraud alleged by the plaintiffs has not been proved. The ground upon which the District Judge has confirmed the decree of the Assistant Judge is that the decree obtained by the defendant in
termas of the award, was obtained” invalidly and ex parte” against the minor defendants who were not properly represented. But Sitabai, who represented the minors Narayan and Bapu before the arbitrators, having died, the Nazir of the District Court was appointed their guardian ad litem in the suit brought to file the award and obtain a decree in terms of it. That was an effective representation of the minors. It is not alleged that the Nazir had no notice of the suit. All that is found by the Courts below is that the Nazir did not defend the suit because he had no instructions. But that circumstance cannot affect the validity of the decree. The mere fact that the decree was obtained
ex parte does not make it illegal or invalid. It would of course be otherwise if fraud or collusion or gross negligence on the part of the Nazir were proved. But that is not the case here.

2. The observations of the Privy Council in the case of Mussammat Bibi Walian v. Banke Behari Pershad Singh (1903) 30 I.A. 182 at page 189 apply here. Their Lordships say: “The present plaintiffs were substantially sued in the former suit and the alleged fraud has been negatived. It appears to their Lordships that they were effectively represented in that suit by their mother and with the sanction of the Court.”

3. The decree, having been passed in terms of the award in the proceedings in which the minors Narayan and Bapu were effectively represented according to law, was binding upon them.

4. We reverse the decree of the lower appellate Court and reject the
plaintiffs’ claim with costs throughout.


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