Legal Thesaurus

Guardian-at-litem

A suit ordinarily, is a civil proceeding instituted by the presentation of a plaint [Hans Raj v. Dehra Dun Mussouriee Elebae Tramway Co., ILR 54 All 1067 (PC0], and an application must be filled in a suit. The proceedings are inclusive of proceedings initiated by originating summons [Provas Chandra v. Ashok Mukherjee, ILC 56 Cal 79], and a proceeding deemed to be a suit by any particular Act. [Watkins v. Fox, ILR (1895) 22 Cal], and includes an appeal [Nachiappa Chettar v. Subramaniam Chettiar, (1960) 2 SCR 209]. It does not however, include execution proceedings. [Moradhway v. Bhundar Das, AIR 1955 All 353 (FB); Gaddpriathe Laxminarayana v. Gangine Ventaka Subbaariah, AIR 1958 AP 679]

An order made on a reference in execution proceeding and an award made under it is invalid [Haridas Mundhra v. Mahabir Prasad Muthalal, AIR 1975 Cal 357], but an award can be treated as an adjustment of the execution proceeding if the conditions of Section 47 are fulfilled. [Section 47 renders obsolete : Zanaklal Mataram v. Fulchand, AIR 1941 Bom 20]. It has to be noted that restitution proceedings under Section 47 of the Code of Civil Procedure [Seth Ramgopal v. Shanti Lal, AIR 1942 All 85], an application for review [Sagar Mal v. Purshottam Das, AIR 1942 All 36], and proceedings for filing an award [Waltullah v. Bhaggan, AIR 1925 Oudh 269), are not suits. An order of reference can be made only in a suit which is pending and a suit is not pending during the period fixed for filing of an appeal as a/an appeal may be filed [Shiva Kumar v. Thakur Prasad, AIR 1930 Oudh 431]. A minor is neither competent to enter into a contract nor enter into an agreement [Mohori Bibee v. Dhurmadas Ghosh, ILR 30 Cal 539 (PC)]. His consent can only be given through his guardian-at-litem without the leave of the Court expressly recorded in the proceedings under O.XXXII, R.7 of the Code of Civil Procedure. An agreement to refer disputes in a suit is an agreement within the meaning of the rule [Madan Lal Hazarimal v. Shri Ramchandra Iswar Davasthan, AIR 1942 Nag 26], and an agreement entered without the Courts leave is voidable against all parties except the minor but cannot be avoided at the instance of the adult parties. [Chabba Lal v. Kullu Mal, AIR 1956 PC 72; Mariam Bibi v. Amina, AIR 1937 All 65 (FB)].

The minor can have the award set aside in a separate suit [Sarju Prasad v. Brijnarain Lal, AIR 1967 Pat 121], or by applying for a review in the same suit [Golnur Bibi v. Abdus Samad, ILR 53 Cal 628]. The need of a reference is judged with reference to existing circumstances on the date of reference and not on subsequent events [Ram Gopal v. Shanti Lal, ILR (1941) All 807].

The Court is duty bound to satisfy [Ennabai v. Fakir Mohammad, AIR 1922 Sind 1] itself before granting leave that the reference is for the advantage of the minor [Mariam Bibi v. Amina, AIR 1937 All Sind 1]. The Courts should not grant leave if the arbitrator is interested in the subject of dispute. [Hussainbhai Bohra v. Bhansilal, AIR 1924 Nag 338]. The power of a manager of a joint hindu family of which the minor is a member is limited by the provision of O. XXXII, R.7 of C.P.C. and while acting as next friend or guardian-at-litem he cannot do what another guardian-at-litem will not do. [Ganesh Row v. Tuljaram Row, ILR (1931) 36 Mad 295].

Leave a Comment