Law: Civil Procedure Code (V of 1908)

Section: O. XXXII, r. 3 and S. 99

Law: Specific Relief Act (I of 1877)

Section: S. 42

(a) Civil Procedure Code (V of 1908)-----   ------ O. XXXII, r. 3 and S. 99-Non-recording of formal order appointing a person guardian ad litem-Held, in circumstances of case, an irregularity curable under S. 99.   Where in a suit for setting aside a decree notice was issued upon the proposed guardian of the minor defendants as well as upon the minor defendants themselves and these were duly served, it was held that the non-recording of a formal order by the Court appointing the person as the guardian of the minor was at best an irregularity and the same was curable under section 99 of the Civil Procedure Code, 1908.   Mst. Bibi Walian and others v. Banke Behari Pershad Singh and others 30 I A 182 ref.   (b) Specific Relief Act (I of 1877)-------   ----- S. 42-Suit for declaration that rent decree and rent execution sale were illegal and ineffective- Defendant in symbolical possession of property-plain tiff must pray for recovery of possession as well.   Where in a suit for setting aside a rent decree as well as the sale in execution of the rent decree the plaintiff was not shown to be in possession and the prayer in the plaint was only for a decla ration that the rent decree and the rent execution proceedings were illegal and ineffective on ground of fraud, it was held that the suit was hit by the provisions of section 42, Specific Relief Act, 1877 because the plaintiff ought to have prayed for consequential relief for possession. Even in a case where the defendant pleads having taken symbolical possession, or there is evidence of the defendant having taken symbolical possession, the plaintiff must pray for recovery of possession in a suit for declaration of his tide, other wise his suit will be hit by section 42 of the Specific Relief Act, 1877.   Almaz Khatun and others v. Ezahar Miah 8 D L R 82 followed.   JUDGMENT   This appeal is by defendant No. 2 Syed Ahmad. It is directed against the judgment and decree passed by the Subordinate Judge, 1st Court, Chittagong, in Other Appeal No.'56 of 1959.   The plaintiffs brought a suit for setting aside the decree obtained by defendant No. 2 in Rent Suit No. 93 of…