R.N. Misra, A.C.J. - (1.) THIS application under Section 115 of the Code of Civil Procedure is by some of the Defendants in Title Suit No. 156 of 1970 of the Court of the Subordinate Judge of Balangir. The suit was one for partition wherein Plaintiff claimed one -fourth share out of the total property of little more than 23 acres on the basis that they were ancestral in character and as per the genealogy his share was as claimed. Plaintiff claimed that Sradhakar had four sons namely Chhelia, Somanath, Lokanath and Gopinath. Plaintiff happens to be the son of Gopinath. Defendants represent the other three branches and one of specific pleas was that Gopinath had been given in adoption to one Suru Dehuri and, therefore, the Plaintiff had no share to claim in the ancestral properties. Original Defendant No. 2 Nurub Nina died during the pendency of the suit and his legal representatives were brought on record. Defendant No. 2(b) Satyabrat Nina impleaded as Petitioner No. 2 in this proceeding was then and is still a minor. The suit was dismissed on 9 -9 -1974 and on an application under Order 9, Rule 9, Code of Civil Procedure, it was restored on 19.12.1975. The suit was then posted to 2 -2 -1976 for trial when Defendants applied for time. The prayer for adjournment was rejected and trial was taken up and Plaintiff examined one witness while on the side of the Defendants, Defendant No. 4 was examined. On 4.2.1976, an application was filed for adjournment so that other witnesses could be examined. The learned Trial Judge rejected the prayer where upon an application was made to obtain an order of stay from this Court. That application was also rejected and judgment was delivered. In the final decree proceeding which followed, an objection was raised on behalf of the Defendants that so far as the minor Defendant was concerned, no guardian had been appointed in the suit after it was restored and the preliminary decree, therefore was bad. Several other grounds for challenging the tenability of the final decree proceeding had also been taken and the learned Subordinate Judge overruled the objections and that has led to the filing of the present application.
(2.) PARTIES have been heard at length. I am inclined to think that the minor's interest has been substantially affected on account of non -appointment of the guardian. It is true that steps had been taken at the stage of the miscellaneous proceeding under Order 9, Rule 9 of the Code of Civil Procedure, but no specific order was made continuing the said guardian in the suit. The record shows that the guardian did not take steps on behalf of the minor. A plea bad been raised in the suit that Plaintiff's father had been adopted away and if that plea had been proved, Plaintiffs suit was liable to be dismissed in toto. Adequate opportunity had not been given to the Defendants particularly the minor Defendant after substitution and, therefore, prejudice seems to have occurred. It may not be out of place to indicate that the learned Trial Judge had been asked to give a little time for examination of defence witnesses and when he rejected the prayer an application for time to obtain an order from this Court had been made which was also rejected. Taking an over -all picture of the matter, I am of the I view that the minor's interest has been prejudiced on account of non -appointment of a guardian for contesting the suit and interests of justice require that the matter should be reheard. I would accordingly accept the revision application, vacate the impugned order as also the preliminary decree itself. I am alive to the position that no appeal has been filed against the preliminary decree, but since a minor's interest is involved and it is the paramount duty of the Court to protect such interest and not to permit minor's interest to be jeopardised, I would not hesitate to allow the preliminary decree to be vacated. Accordingly, the preliminary decree is vacated. The learned Subordinate Judge is directed to see that an appropriate guardian is appointed for the minor and thereafter proceed to dispose of the suit afresh after giving reasonable opportunity to both sides for leading evidence. Apart from the minor, there are other Defendants who have also come before the Court. As the matter is being reopened, I think it proper that all the Defendants are given an opportunity to establish their defence, but this should be only on terms of costs. I accordingly vacate the preliminary decree and direct the learned Trial Judge to re -dispose of the suit after giving reasonable opportunity to both sides to lead evidence, both oral and documentary, in accordance with law, subject to the condition that the Defendants would pay to the Plaintiff consolidated cost of Rs. 250/ - within one month hence. If the amount of costs directed herein is not paid within the time specified, this revision application shall be taken to have been dismissed. In case of compliance the learned Trial Judge is called upon to dispose of the suit within three months from the date when the costs are paid. There shall be no further order for costs. ;