Nanu Ram vs Jagdish Pershad And Ors.
1995 Latest Caselaw 610 Del

JUDGMENT

Mohd. Shamim, J.

(1) The petitioner through the present petition has taken exception to an order dated September 3,1994 passed by the learned Civil Judge, Delhi whereby he disposed of the two applications under Section 47 & Section 144 of the Code of Civil Procedure moved in Execution Case No. 4/94, by Ms. Manjula and Shri Tarun Kumar, respondents herein. Both the applications were allowed and the judgment and decree dated September 19,1989 were set aside and the petitioner was directed to restore the possession over a part of the premises bearing No. 494-501, 514, Ward No. 7, Lahori Gate, Delhi to the respondents.

(2) The petitioner also preferred an appeal against the said order insofar as the said order related to the restoration of possession before the learned District Judge being Mca No. 13/94. Since the present revision petition and the above said appeal arose out of one and the same order ( hereinafter referred to as the impugned order) both are being disposed of together vide the present order.

(3) Brief facts which gave rise to the present cases are being narrated below in order to facilitate the disposal and for appreciation of the points involved herein. The plaintiff / petitioner Shri Nanu Ram Along with others ( herein-after referred to as the petitioner) filed a suit for recovery of possession, being Suit No. 291/76, against certain persons/defendants, including one Shri Banarsi Dass. The said Banarsi Dass died during the pendency of the suit, whereupon an application was moved to bring his legal heirs on record. The said application

(4) One of the defendants namely Shri Naresh Kumar went in appeal, being R.C.A. No. 81/91, against the said judgment and decree. The same was dismissed vide judgment and order dated November 30,1992.

(5) Subsequently the respondents namely, Ms. Manjula and Shri Tarun Kumar took objection to the said judgment and decree through their applications dated August 9,1994 and August 17,1994 under Section 47 and Section 144 of the Code of Civil Procedure on the ground that they were minors during the pendency of the above said suits, hence the impugned judgment and decree passed against them are void ab initio and are thus liable to be set aside. The learned Civil Judge agreed with them and set aside the impugned judgment and decree dated September 19,1989 qua the respondents as a corollary whereof he further ordered the petitioner herein to restore the possession over the portion of the suit premises referred to above, to the respondents.

(6) Aggrieved and dis-satisfied with the impugned order the petitioner has approached this Court by way of the present revision petition and the learned District Judge by way of an appeal.

(7) Learned counsel for the petitioner Mr. Anil Kumar has vehemently contended that the learned lower court fell into a grave error by coming to the conclusion that the impugned decree dated September 19,1989 was void and a nullity and the respondents were as such entitled to restitution of the possession. According to the learned counsel, the respondents attained majority during the pendency of the said suit. The respondent Ms. Manjula was born on August 5,1965. Hence she attained majority on August 5,1983. Shri Tarun Kumar on the other hand, was born on July 12,1962. He thus became major on July 12,1980. It implies thereby, the learned counsel contends, that both of them were major at the time the impugned judgment and decree were passed. Hence to contend that the said judgment and decree dated September 19,1989 were void, is not tenable in law by any stretch of imagination.

(8) The next limb of the argument advanced by the learned counsel for the petitioner is that both the above-named minors were throughout represented by their mother Smt. Angoori Devi. The interest of the alleged minors was in no way different from that of Smt. Angoori Devi. Thus, their interests were identical. Smt. Angoori Devi took and raised all conceivable points by way of defense which could have been raised by the respondents namely Tarun Kumar and Ms. Manjula. Thus there was an effective representation for and on behalf of the minors. Hence they were not prejudiced in their defense in any manner, whatsoever.

(9) It has been urged for and on behalf of the respondents that the respondents herein, namely, Ms. Manjula and Tarun Kumar were very much minor at the time of the institution of the suit i.e. in the year 1976 inasmuch as Ms. Manjula was born on August 5,1965 and Tarun Kumar saw the light on July 12,1962. Admittedly no guardian-ad- litem was appointed to look after their interests. Thus they were very much prejudiced in their defense. It is a well recognised principle of Civil Jurisprudence that a decree passed against a minor is void ab initio and is a nullity. Hence according to the learned counsel the learned lower court was fully justified in setting aside the impugned judgment and decree. 10. Since we are concerned with the construction of O.XXXII R. 3 of the Code of Civil Procedure it would be just and proper to examine the provisions of the said Order before proceeding any further in the matter. O.XXXII deals with the suit by or against person or persons of un-sound mind. O.XXXII R.3 deals with the guardian for the suit to be appointed by Court for minor defendant. It reads as under:- (1)WHEREthe defendant is a minor, the Court, on being satisfied of the fact of his minority, shall appoint a proper person to be guardian for the suit for such minor. (2) An order for the appointment of a guardian for the suit may be obtained upon application in the name and on behalf of the minor or by the plaintiff. (3) Such application shall be supported by an affidavit verifying the fact that the proposed guardian has no interest in the matters in controversy in the suit adverse to that of the minor and that he is a fit person to be so appointed. (4) No order shall be made on any application under this rule except upon notice to any guardian of the minor appointed or declared by an authority competent in that behalf, or, where there is no such guardian, (upon notice to the father, or where there is no father, to the mother, or where there is no father or mother, to other natural guardian) of the minor, or, where there is (no father, mother, or other natural guardian,) to the person in whose care the minor is, and after hearing any objection which may be urged on behalf of any person served with notice under this sub- rule. (4.A) The Court may, in any case, if it thinks fit, issue notice under sub-rule (4) to the minor also. (5) A person appointed under sub-rule (1) to be guardian for the suit for a minor shall, unless his appointment is terminated by retirement or removal or death, continue as such throughout all proceedings arising out of the suit including proceedings in any appellate or revisional Court and any proceedings in the execution of a decree. It is manifest from above that no suit can proceed against a minor defendant unless a guardian has been appointed to defend the suit on his behalf. In case no guardian is appointed in that eventuality the entire proceedings which resulted in the passing of a decree against the minor would be a nullity and thus liable to be set aside. The object of O.XXXII is to see that no decrees are passed against minors where they are not effectively represented. It is manifest from above that a decree would be a nullity only in those discerning few cases where it is passed against a minor when he is not being represented by a guardian to safeguard his interest. However, in case a suit is instituted against a minor showing him as a major and he attains majority during the pendency of the proceedings in that eventuality it would not be a decree against a minor since the minor was a major on the date of the passing of the decree. Thus the provisions of O.XXXII R.3 would not come into play in the case of a person who was initially a minor but attained majority during the course of proceedings and on the date of the passing of the decree inasmuch as on the said date there was no need of a guardian to look after his interests. He himself was a sui juris. I am fortified in my above view by the opinion given vent to by a Single Judge of the Travancore and Cochin High Court as reported in Ouseph Joseph v. Thoma Eathamma, ( Air 1956 Tra.-Co. 26)...." A decree against a minor will be void and of no legal effect. To attract this rule, the decree must have been passed against a minor. The rule is not that any decree passed in a suit commenced against a minor without a lawful guardian to represent him will be void. When the decree is passed against the minor wrongly described as a minor, who has really attained majority prior to the date of the decree, in such a case it will not be a decree passed against a minor so as to render it void. It may be a decree passed against that person without notice as a major. The remedy will then be to have it set aside as an ex parte decree or by means of a fresh suit".

(10) To the same effect are also the observations of a Division Bench consisting of Sir Shadi Lal and Wilberforce JJ. as reported in Mt. Khadija v. Mt. Fidya Tuz Sohra, ( Air 1919 Lahore 135)..." Now, as pointed out above, the plaintiff had attained the age of majority 16 days before the date of the decree in question, and we cannot therefore view that decree as one passed against an infant, simply because the plaintiff was a minor at the time the action was brought, and also continued to be a minor during the major portion of the period taken up by the trial of the suit. Mr. Fazl-i-Husain for the plaintiff is unable to cite any authority to the effect that the right to bring a separate suit to set aside a previous decision can be claimed by a person who, though an infant during part of the proceedings, was undoubtedly sui Jurisdiction at the time of the judgment".

(11) The above view was again reiterated in Chiragh Din and another v. Mehtab, (AIR 1934 Lahore 274(2). In a situation very much akin to the case in hand,it was opined by a Division Bench of the Madras High Court as reported in Lanka Sanyasi Vs. Lanka Yerran Naidu and Others Air 1928 Madras 294:- "NO provisions have been made in the Civil Procedure Code, in respect of a minor defendant attaining majority. Therefore, the minor defendant who comes of age may, if he thinks fit, come on the record and conduct the defense himself. If, however, he does not do so and allows the case to proceed as though he was still a minor without bringing to the notice of the Court, the fact of his having attained majority, then he must be deemed to have elected to abide by the Judgment or adjudication by the Court with respect to the matters in controversy on the basis of the suit at the time."

(12) There is no dispute that the names of the respondents known as Ms. Manjula and Shri Tarun Kumar were substituted in place of their father during the pendency of the Suit No. 291/76 on the sad demise of their father Banarsi Dass (vide substitution application dated March 8,1977 which was allowed on February 27,1978). Shri Tarun Kumar was born on July 12,1962 whereas the other respondent Ms. Manjula saw the light on August 5,1965. Thus when their names were substituted they were about 16 years and 13 years of age respectively. However, the said suit Along with the other suits was disposed of on August 19,1989. By that time Ms. Manjula was 24 years of age whereas her brother Tarun Kumar was 27 years of age. Thus when the judgment and decree were passed against them Shri Tarun Kumar had attained majority nine years prior to the date of the judgment and decree whereas his sister Manjula became major six years prior to that. Both of them for the best reasons known to them did not come forward to apprise the court of the fact of their attaining majority and thus I feel chose to abide by the judgment and decree which was eventually passed against them.

(13) Learned counsel for the respondents in support of his contention led me through Edwin Stephan v. Sada Nand, 1981 Rlr 262, and Oriental Bank of Commerce v. M/s M.K.Gupta & Co. (P) Ltd. & Ors. . I have very carefully examined the said authorities. They are not applicable to the facts of the present case as the said authorities relate to cases where the judgments and decrees were passed against minors.

(14) There is yet another aspect of the matter. Admittedly Smt. Angoori Devi, respondent No.5(i) applied for setting aside the ex parte order on March 29,1979. The said application was allowed on April 20,1979. The respondent No.5 Smt. Angoori Devi filed the written statement which led to the framing of the additional issues as is manifest from the order dated May 25,1979 passed by the learned Sub Judge. The respondent No. 5(i) Smt. Angoori Devi was duly represented by Shri G.D.Rattan, Advocate. She raised all conceivable pleas and issues which could have been raised for and on behalf of Ms. Manjula and Tarun Kumar. Admittedly, both the above-named respondents i.e. Ms. Manjula and Tarun Kumar were putting up in the same premises Along with their mother. The interest of the said respondents i.e. Ms. Manjula and Tarun Kumar is identical with the interest of Smt. Angoori Devi. Thus I feel even otherwise there was an effective representation of the above-named persons namely, Tarun Kumar and Ms. Manjula.

(15) The Civil Judge while passing the impugned order was of the view that a notice was required to be issued to the judgment debtors on the presentation of the execution petition as per the provisions of O. Xxi R.22 of the Code of Civil Procedure as the execution application was filed on January 20,1994 i.e. after five years of the passing of the decree on September 19,1989. The learned lower court, I feel, was not correct in his observation inasmuch as one of the respondents herein preferred an appeal against the judgment and decree dated September 19,1989. The said appeal was disposed of by the learned Additional District Judge vide judgment and order dated November 30,1992. Thus the requisite period of two years was to be computed from the aforesaid date and if so computed the execution petition was filed within two years i.e. on January 20,1994.

(16) In view of my above discussion the petitioner is entitled to succeed. The appeal as well as the present revision petition are hereby allowed. The impugned judgment and order dated September 3,1994 are hereby set aside. Let a copy of this order be also placed on the file of Mca No. 13/94 filed before the learned Additional District Judge, Delhi and subsequently withdrawn by this Court for disposal Along with the present revision petition.