Annada Prasad Alias Annoda Chandra ... vs Upendra Nath Dey Sircar And Maharaj ... on 5 August, 1921
Cas 845 : 15 C.L.J. 446 : 17 C.W.N. 219, Dinabandhu Nandi v. Mashuda Khatun 17 Ind. Cas.
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Dinabandhu Nandi vs Mashuda Khatun on 23 July, 1912
Fala Krista Pal And Ors. vs Jagannath Marwari And Ors. on 4 March, 1932
And when so passed they have not been regarded as altogether invalid but only the question whether a further decree could be had or not has been held to depend upon the terms of the decree already made: e. g. Dinabandhu v. Mashuda Khatun [1912] 17 I. C. 263 Khulna Loan Co. Ltd. v. Jnanendranath Base A.I.R. 1917 P.C. 85 Sitanath Saha Banik v. Madan Mohan Das [19191 53 I.C. 904 and Damodar v. Vyanku [1907] 31 Bom.
Aiyasamier (Dead) And Ors. vs Venkatachela Mudali And Anr. on 17 August, 1916
5. I am of the same opinion. The decree m this case was passed in January 1895. Its terms are " that the defendants do pay to the plaintiff the suit amount with costs and with interest on the suit amount at the rate of 6 per cent. per annum from the date of the plaint till the date of realization of the amount within three months from this date, that in default the mortgaged properties shall be sold by public auction and if there be balance even after that, it shall be recovered by the plaintiff from the first defendant and the common family properties of both the defendants. " Even under the Transfer of Property Act, the decree for the balance ought to have been passed only on ascertaining the amount remaining due after the sale of the hypothecs, None the less, the loose practice of passing a combined decree for sale as well as for the recovery of the balance in case the saleproceeds resulted in a deficit, was generally prevalent. The new Code of Civil Procedure by miking Section 90 of the Transfer of Property Act part of the procedure to be followed in the framing of decrees has drawn pointed attention to what a mortgagedecree should contain at the outset and when the personal decree for the balance should be passed. It was held by Mookerji, J. in Dinabandhu v. Mashuda (1905) I.L.R. 29 M. 16, that a composite decree like the present one "though not strictly in conformity with the provisions of the Transfer of Property Act, is a good and valid decree as between the parties thereto."
Periyasami Kone vs V.P.R.M. Muthia Chettiar on 17 November, 1913
See Dinabandhu v. Mashuda (1912) 16 C.L.J, 318, Dina Nath Mitter v. Bejoy Krishna Das (1903) 7 C.W.N., 744 and Purna Chandra Mandal v. Radha Nath Dass (1906) I.L.R., 33 Cal., 867 at p. 877.
Sohanlal vs Babulal And Ors. on 19 November, 1965
11. On the other hand, Mr. Parakh, learned counsel for the respondent, has invited attention to some cases in which it has been held that the consent of the guardian has to be expressly stated before he can be appointed to represent the minor. The first of these is Dinabandhu Nandi v. Mashuda Khatun, (1912) 17 Ind Cas 263 (Cal). The judgment is of 1912 and relates to a suit which was instituted before the promulgation of the Civil Procedure Code of 1908. The proposed guardian did not enter appearance and did not accept the office of the guardian in express terms. It was held that the minors were not represented. This judgment was followed in 27 Ind Cas 139: (AIR 1915 Cal 203) in which it was observed that it was not competent for the court to appoint the minors' mother to be their guardian-ad-litem without her express consent. This case also related to the period when the Civil Procedure Code of 1908 was not in existence.
Pundit Mohan Krishna Dar And Ors. vs Chowdhuri Har Prasad And Ors. on 27 March, 1917
We think that the procedure adopted by the learned Judge in so adding these persons as guardians without their assent was without jurisdiction, Order XXXII, Rule 4, sub Rule 3, provides that No person shall without his consent be appointed guardian for the suit." It is now clear that no person can be appointed as guardian on behalf of a minor without his consen. This Order is mandatory and imperative in its nature; and it is quite clear that it would amount to nothing short of want of jurisdiction in the Court to appoint such a person without his consent. We adopt the law which we think was accurately laid down in the cases reported as Dinabandhu Nandi v. Mashuda Khatun 17 Ind. Cas.
Narayana Iyer vs Singaraveloo Vannian And Ors. on 1 August, 1917
1120: 32 M. 534, 5 M. L. T. 246. and Dtnabandhu Nandi v. Mashuda Khatun 17 Ind. Cas. 263: 16 C. L. J. 318. are clearly in point. As the decree specifically decreed that the defendants were to pay any deficiency that might arise, it was not necessary to obtain another separate decree or order under Section 90 of the Transfer of Property Act.
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