Report No. 83
7.45. Section 36-Recommendation.-
Section 36 deals with the filing of a suit against the guardian where administration bond was not taken as contemplated by section 35. It empowers any person with leave of the Court to institute a suit as next friend against the guardian or his representative.
Sub-section (2) of the section contains a reference to section 440 of the Code of Civil Procedure, which should now be read as Order 32, rules 1 and 4(2) of the Code of 1908. We recommend that the sub-section should be suitably revised for the purpose.
We are further of the opinion that where the Court has passed an order under section 34(d) requiring the guardian to pay in the Court the balance due, it should not give leave for the institution of a suit under this section in so far as the suit relates to that amount. The question of liability of the guardian would already have been dealt with in proceedings under section 34 and there should be no necessity for duplicating the proceedings so far as that amount is concerned. An exception may, however, be made where recovery otherwise than by suit is not practicable.
Accordingly, we recommend that a new sub-section (3) should be added to section 36, as follows:-
"(3) Where the guardian has been required by the Court to make payment of the balance due under clause (d) of sub-section (1) of section 34, the Court shall not grant leave under this section for the institution of a suit against the guardian in so far as such a suit relates to the amount so required to be paid, unless the court is satisfied that recovery of that amount otherwise than by a suit tinder this section is not reasonably practicable in the circumstances of the case."