Panchu Gopal Das vs Amulya Dhan De

Roxburgh, J.—This is an appeal against a decree of the Additional District Judge of 24-Pargands affirming a decree of the Munsif, First Court, Sealdah, dismissing a suit brought u/s 36(i) of the Bengal Money-lenders Act.

The only question necessary for determination in the present appeal is whether a previous proceeding brought u/s 36(6)(a)(ii) by way of review by the three Defendants in the original mortgage suit, which was dismissed, is binding on the Plaintiff. The Defendants in the case were the present Plaintiff''s mother and his brother, the Plaintiff himself being a minor. In the suit, the mother did not appear and a lawyer guardian-ad-litem was appointed, but the application u/s 36(6)(a)(ii) was made by the mother and brother and by the mother purporting to act as guardian of the present Plaintiff.

The lower courts have held that this proceeding was an entirely separate matter unconnected with the suit, so that the mother could act as guardian for the minor.

The contention on behalf of the Appellant here is that Order XXXII, Rule 3(5) applies and that the original guardian in the suit--

unless his appointment is terminated by retirement, removal or death, (shall) continue as such throughout all proceedings arising out of the suit including proceedings in any appellate or revisional court and any proceedings in the execution of a decree.

The mother could not appear as guardian for the minor in the proceeding u/s 36(6)(a)(ii) unless the pleader guardian had retired or had been removed and it is not suggested that this had happened.

For the Respondents, it is urged that, although Section 36(6)(a)(ii) refers to the application there provided for as a review and specially says that Rules 2 and 5 of Order XLVII of the CPC will not apply, still in some way the proceedings are not really review proceedings under Order XLVII, because that Order itself does not provide for any such ground of review. The contention cannot be accepted. The effect of Section 36(6)(a)(ii), in so far as it relates to the decree specified under the Money-, lenders Act, is to provide an amendment to Order XLVII as to the grounds of review; and in any case, whether the review proceedings are to be taken strictly as proceedings under Order XLVII as amended by the Money-lenders Act, or whether they are to be taken as ad hoc proceedings provided by the Money-lenders Act, they are clearly "proceedings arising out of the suit" within the meaning of the words as used in Order XXXII, Rule 3(5).

It is conceded that, if the above view is held, then it follows that the dismissal of the application for review u/s 36(6)(a)(ii) will not in any way bind the Plaintiff who was not properly represented in that application. Consequently, the decision in that application cannot be res judicata, so as to bar in effect the present suit of the Plaintiff.

It is unnecessary, in that view, to decide whether, if it had been held that the proceedings u/s 36(6)(a)(ii) were binding on the Plaintiff, the decision would amount to res judicata in the present suit.

The appeal must, accordingly, be allowed with costs throughout and the case is remanded for disposal to the trial court, which will re-open the decree and pass a new decree in accordance with the provisions of Section 36(5) of the Bengal Money-lenders Act.

Leave to appeal under el. 15 of the Letters Patent asked for is refused.