MD IBRAHIM Vs. MDABDUL BASHAR

JUDGEMENT

(1.) This rule is issued upon an application under Section 115, Civil P.C., and is directed against an order passed by the District Judge of 24-Parganas on 21 September 1936 issuing distress warrant upon the petitioner who is a minor to recover from him a sum of Rs. 445-5-0 alleged to be due by him to the ex-guardian who is the opposite party in this case and who is a pleader practising in the Alipore Court. It appears that originally one Hanifa Bibi was appointed guardian of the infant. Later on, on 13 June 1934, this Hanifa Bibi was removed and in her place the pleader opposite party was appointed guardian. Against this order, appointing the opposite party as guardian, an appeal was taken to this Court. On 31 May 1934, this Court set aside the order of the District Judge appointing the opposite party as guardian and held that having regard to the age and intelligence of the minor it was not necessary to appoint a guardian at all. The opposite party thus ceased to be guardian and on 9 July 1936 the petitioner filed an application praying that the ex-guardian might be directed to submit accounts in respect of his dealings with the petitioner's estate.

(2.) On 6 August 1936 the ex-guardian did file some accounts and the matter was ultimately set down for hearing on 26 August 1936. On that date neither the minor nor his guardian appeared and the Court passed order to this effect: "No appearance on either side (12-30 p.m.). The accounts are filed and the matter closed". The guardian, it is stated, did not file accounts from August 1935, but furnished accounts from August 1936. So a day after, that is to say on 27 August 1936, the minor filed a petition for reasons stated therein that the ex- guardian might be directed to submit proper accounts from August 1935 with necessary details of expenditure incurred by him. The application was simply directed to be filed with a note that the ex-minor did not appear on the previous day. Then on 7 September 1936 a notice was issued on ex-minor directing him to deposit the sum of Rs. 445-5-0 in the Court, this amount being due by the minor to the ex-guardian on the basis of the accounts submitted by the latter. The minor again filed a petition on 19 September 1936, in which he stated that if proper accounts were taken from the ex. guardian that sum would not be due to the guardian but on the contrary a sum of Rs. 6,000 would be due to the minor petitioner from the ex-guardian. But this application was not considered and on 21 September 1936, the learned Judge passed the order issuing a distress warrant upon the petitioner, against which this rule is directed.

(3.) The point for consideration in this rule is whether this order passed by the District Judge is with or without jurisdiction. The learned advocate for the petitioner has contended before me that there is no provision in the Guardians and Wards Act empowering the Court to pass such an order. I asked the learned advocate for the opposite party to satisfy me as to whether there is any provision in the Act which may empower the Court to pass an order like this. He invokes the supplementary jurisdiction whereby the Court can exercise certain powers under the provisions of Section 43, Guardians and Wards Act. But reading that section carefully I am unable to hold that the section really helps the opposite party in this case. I myself went through the provisions of the Act and failed to find out any section under which an order of this description could be passed. In my opinion the order is without jurisdiction and must be set aside.