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Civil Revision No. 79 of 1962, decided on 7th March 1963.

O. XXXII, r. 3 and Ss. 47 & 151‑Pre‑emption suit‑Decree passed against minors without their being properly represented by guardian‑ad‑litem‑Minors filing objection under S. 47 at time of execution of decree‑Plaint pleading ignorance of minority of defendants at time of filing suit-- Proceedings taken earlier not wiped out though decree can be declared nullity‑Minors relegated to position obtaining at time of occurrence of illegality ‑ Court to restore original suit by resorting to powers under S. 151 and proceed from point where default had taken place‑Restoration of suit in such case, however, will not affect plea of limitation.

Arumuga Goundan and others v. Pariavan Jiappa Goundan and others A I R 1924 Mad. 489 dissented from.

Syed Mahbub Husain Shah and others v. Anjuman Imdad Qarza A I R 1942 Lah. 129 and Abdul Karim v. Sikandar Khan and others P L D 1960 Lah. 155 held not applicable.

Lakhanlal Ramsaran and another v. Sitaram Gulabchand Mehesri A I R 1937 Nag. 165 ; Talib Ali Shah v. Piarey Lal and another A I R 1930 All. 644 ; Mukandi Lal Munshi Lal v. Noor Elahi Abdul Elahi A I R 1934 Lah. 44 ; Abdul Qayum Shah and others v. Muhammad Sadiq P L D 1950 Pesh. 3 and Raja Debi Bakhsh Singh 19 I C 526 ref.

Ch. Farzand Ali for Petitioner.

Mustafa Khan for Respondents.

A pre‑emption‑ suit was filed in the Court of Senior Civil Judge, Bahawalpur at Hasilpur on the 31st of February 1960, by Ghaus Bakhsh against Ghulam Husain, Ghulam Qadir and Mst. Sughra, minors petitioners and five others who were the vendees in that sale. Muhammad Bakhsh and Allah Bakhsh vendors were also impleaded as defendants. Haji Saleh, Hafiz Allah Ditta and Mst. Sakina vendee‑defendants appeared in Court. Ex parte proceedings were taken against the rest of the defendants. The above‑mentioned defendants who had appeared in Court entered into a compromise with the plaintiff and on their statements a consent decree was passed on the 26th of July 1961. The plaintiff took out execution in order to obtain the possession of the property pre‑empted by him. The three petitioner‑vendees were minors, but they were impleaded in the suit without any guardian. Consequently during the execution proceedings they filed objections under section 47, C. P. C. that the decree could not be executed against them as they had not been properly impleaded in the suit and the decree was a nullity. The plaintiff filed an application under section 151. C. P. C. on the 19th of October 1961 wherein he admitted the minority of the petitioner vendees and pleaded that he did not know about their minority and came to know of it during the execution proceedings. He prayed that the decree maybe set aside and the original suit restored for proceedings according to law. The petitioners filed a reply to the application wherein they pleaded that the plaintiff knew about their minority and that an issue be struck for determining this point. It was further pleaded that the Court had no jurisdiction under section 151, C. P. C. to set aside the decree and restore the suit to the stage at which the mistake had occurred. However, the learned Senior Civil Judge by his order dated the 13th January 1962, set aside the decree against the petitioners. He further directed that as a partial pre‑emption decree was not possible the whole case be reopened. The suit was restored to be taken up on the 12th of February 1962. The petitioners have challenged this order by means of this revision petition.

2. It is contended by the learned counsel for the petitioners that it was the duty of the executing Court to frame an issue as to whether the factum of the minority of the petitioners was within the knowledge of the plaintiff or not. It is, therefore, urged that the order be set aside and the case remanded to the trial Court for framing of an issue on the point and then decide the matter afresh. The other contention of the learned counsel is that the decree being a nullity so far as the minors were concerned there was no jurisdiction in the Court to restore the suit under section 151, C. P. C. The learned counsel has relied on Arumuga Goundan and others v. Pariavan Jiappa Goundan and others (A I R 1924 Mad. 489), Syed Mahbub Husain Shah and others v. Anjuman Imdad Qarza (A I R 1942 Lah. 129) and Abdul Karim v. Sikandar Khan and others (P L D 1960 Lah. 155), in support of this contention.

3. So far the first contention of the learned counsel is concerned, I do not consider it was necessary for the learned Senior Civil Judge to frame an issue on the point whether the factum of the minority of the petitioners was within the knowledge of the plaintiff‑respondent or not, because the decree, so far as the minors were concerned, was undoubtedly a nullity. This position was even accepted by the plaintiff in his application under section 151, C. P. C. It is immaterial at this stage whether the plaintiff had knowledge of the minority of the petitioners or not. I, therefore, do not agree with the learned counsel on this point.

4. As regards the second contention of the learned counsel, the learned counsel for Ghaus Bakhsh respondent urged that the plaintiff belonged to Hasilpur, that the land in dispute was also situated within the jurisdiction of Hasilpur Tehsil. The vendees belonged to Mailsi Tehsil, District Multan. In the registered sale‑deed the names and parentages of the vendees were mentioned but their ages were not mentioned. The plaintiff did not know the vendees personally. Consequently he had no knowledge of the minority of the petitioners. That the vendees who entered into a compromise were brothers and sister of the petitioners. They did not raise any objection at the hearing of the suit that the petitioners were minors and had not been properly represented in the suit. The learned counsel for the respondent has relied on Lakhanlal Ramsaran and another v. Sitaram Gulabchand Mehesri (A I R1937 Nag. 165), Talib Ali Shah v. Piarey Lal and another (A I R 1930 All. 644), Mukandi Lal Munshi Lal v. Noor Elahi Abdul Elahi (A I R 1934 Lah. 44). Abdul Qayum Shah and others v. Muhammad Sadiq (P L D 1950 Pesh. 3) and Raja Debi Bakhsh Singh (19 I G 526) and contended that in such an eventuality the proper course for the Court was to relegate the parties to the position which they occupied at the time when the illegality occurred in the proceedings.

5. I have carefully gone through the authorities cited at the bar. The facts in A I R 1924 Mad. 489 were that a decree was passed in Original Suit No. 559 of 1919 against the minors without a proper guardian. The decree was challenged in Suit No. 479 of 1921 and it was decided in the second suit that the earlier decree was not binding on the minors because they were not validly represented in the earlier suit. In the latter suit it was observed that the earlier suit will have to be revived as against these minor plaintiffs and the District Munsif in exercise of his powers under section 151, C. P. C. revived the case on his file and proceeded to try it. The learned Single Judge set aside this order. It was remarked that if the minors were not legally made parties to the earlier suit the action of the Court in making them parties now was tentamount to restoring to file a suit already disposed of and adding parties who were not represented at the original trial. I am in respectful disagreement with this authority. The effect of the declaration that a decree passed against the minors without their being properly represented was a nullity could not have the effect of wiping out the proceedings taken earlier, the minors will be relegated to the position which they occupied on the day when the illegality occurred and the Court proceeded to decide the suit without a proper guardian of the minors Section 151, C. P. C. is meant to be resorted to in such contingencies, otherwise, it will be doing grave injustice to the parties who in some of the cases through no fault of theirs might implead a minor without a guardian. The Lahore ruling relied by the learned counsel for the petitioners does not help him, because what has been laid in the authority is that a decree or an award against a minor not properly represented was null and void. This proposition is not contested. The consequences that would follow after a decree is declared as null and void have not at all been considered in this case, because this point was not in issue in the case. P L D 1960 Lah. 155 is also not applicable to the present case. In that case legal representatives of a necessary party having not been brought on record, it was held that the appeal in a pre‑emption suit abated in toto. The authorities cited by the learned counsel for the respondent clearly support his contention. The facts in the Nagpur case were that a decree was passed against a minor along with another person. The minor contested the decree in a separate suit and the decree against him was set aside on the ground of fraud and non- representation. It was held that in a case of this kind the only position to which the minor could be relegated with any semblance of equity was to allow the original proceedings to continue from the stage at which the minor would have been in a position to contest the claim against him. Reliance was placed on I L R 28 All. pp. 585, 35 All. p. 331, 1930 All. p. 644 and A I R 1928 Nag. p. 106. This view is supported by the A I R 1937 Nag. 165 already cited. A I R 1934 Lah. 44 also lays down the same principle. It has been held that after a decree has been set aside the Court should restore the parties to the position which they occupied on the date of the decree, although this was not a case in which any of the party was a minor. In this case a decree was set aside as having been obtained on fraud. No order was made for the restoration of the original suit. The High Court in second appeal directed that the original suit be restored and further proceedings be taken from the point immediately preceding the passing of the decree. P L D 1950 Pesh. 3 ruling directly deals with a similar case and after considering quite a number of authorities it has been laid down that if a decree was held to be a nullity as against a minor as he was not properly represented it is the duty of the Court to restore the original suit and proceed further from the point where the default was committed. There are observations in 19 I C 526 authority which is a Privy Council's ruling which also lends support to this view. However, the mere fact of the restoration of the original case will not affect the plea of limitation which might be raised by the petitioners in the original suit.

6. In view of the matter I uphold the order passed by the learned Senior Civil Judge and dismiss this petition with costs.

K. B. A. Petition dismissed.

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