MAYANDI CHETTIAR Vs. TIRUMALAI AIYANGAR

JUDGEMENT

(1.) THE District Munsif passed separate decrees against the 1st defendant and defendants Nos. 2 and 3. THE 1st defendant did not appeal against this decree. THE plaintiff appealed against the decree in so far as it exonerated defendants Nos. 2 and 3 from liability for a portion of the claim. Defendants Nos. 2 and 3 filed a memorandum of objections. THE District Judge held that the 1st defendant was a minor at the time that the mortgage document was executed and dismissed the suit altogether. We are unable to uphold the decree. THE memorandum of objections by defendants Nos. 2 and 3 did not proceed on any ground common to them and to the 1st defendant. Consequently as the 1st defendant did not appeal, the decree became final against him. THE District Judge was not justified in interfering with the decree against him under Order XLI, Rule 33 of the Civil Procedure Code vide Rangam Lal v. Jhandu 11 Ind. Cas. 640 : 8 A.L.J. 1111 : 34 A. 32. In so far as the suit is decreed against him, we must reverse the decree. THE plaintiff contended in his appeal that although defendants Nos. 2 and 3 might have been minors, they were represented by a guardian and the debt is binding on them. THE District Judge has not dealt with this aspect of the case. We must reverse the decree of the District Judge and remand the appeal to him for disposal on the merits. THE costs will abide the result.