Decided on February 08,1952



Rajamannar, C.J. - (1.) The plaintiffs in O. S. No. 1 of 1946 in the Court of the Subordinate Judge of Masulipatam appeal against the decree of the learned Judge dismissing their suit brought for setting aside the decree in O. S. No. 33 of 1936 on the file of the same Court obtained by defendant 1 against them and defendants 2 and 3. The plaintiffs are the sons of defendant 2. Defendant 1 instituted O. S. No. 33 of 1936 above mentioned to recover a sum of Rs. 14893-13-6 due under two promissory notes dated 5th March 1930 executed by defendant 2, i.e., the father of the plaintiffs in her favour for Rs. 8703-3-3 and Rs. 605-9-3 respectively. As the father had been adjudicated insolvent, the Official Receiver was also made a party. The plaintiffs were all minors on the date of the institution of that suit and they were represented by their mother as their guardian. She filed a written statement in which three defences were raised, viz., (1) that the amounts under the promissory notes were borrowed for illegal and immoral purposes, (2) that the promissory notes were barred by limitation Adusumilli Venkata Gopala Rao and Ors. vs. Yerreni Kantamma and Ors. (08.02.195... Page 2 of 3 pala Rao and Ors. vs. Yerreni Kantamma and Ors. (08.02.195... Page 2 of 3 so far as the minor sons were concerned because the acknowledgment made thereon by the father was after a petition to adjudicate him an insolvent had been presented and (3) that the rate of interest was usurious. Though she filed the written statement, she did not appear at the time of the trial in person or by advocate and an ex parte decree for the amount as prayed for was passed on 14th August 1937. The plaintiffs' mother thereafter filed an application for setting aside the ex parte decree. The learned Subordinate Judge by his order dated 4th November 1937 directed that the said ex parte decree be set aside on condition of a deposit of Rs. 200 being made in Court within ten days of the date of the order and on default of such deposit, the application was to stand dismissed with costs. The amount was not deposited and the ex parte decree was not set aside. Soon thereafter, Madras Act 4 of 1938 came into force and immediately after that the mother on behalf of the plain-tiffs, applied to the Court for scaling down the debt. Eventually the debt was scaled down with the result that the entire amount payable under the decree was about Rs. 5000. After these proceedings, the plaintiffs commenced the present suit out of which this appeal arises for setting aside the decree on the ground that their guardian had acted in a grossly negligent manner.
(2.) In the plaint it was alleged that there was a secret arrangement between defendant 2 and the brother of defendant 1 under which defendant 2 promised to amicably settle the suit debt and other debts and on the faith of such representation, the mother of the plaintiffs was induced to remain ex parte and to suffer the decree. It was further alleged that the conduct of the guardian in not defending the suit was recklessly and grossly negligent.
(3.) At the trial the plaintiffs gave up the contention that there was a arrangement between defendant 1's brother and defendant 2. Therefore all that remained was to determine whether there was gross negligence on the part of the guardian of the plaintiffs' mother who represented them as their guardian was guilty of gross negligence and fraud.;

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