whetherthe exparte decree was a nullity, as it waspassed against a minor without the minor being represented by aguardian duly appointed in terms of the procedure contemplatedunder Order XXXII, Rule 3 of the Code
REPORTABLE
IN THE SUPEME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (C) NO.2492 OF 2021
K.P. NATARAJAN & ANR. … PETITIONER(S)
VERSUS
MUTHALAMMAL & ORS. …RESPONDENT(S)
J U D G M E N T
V. Ramasubramanian, J.
1. In a Civil Revision Petition filed under Section 115 of the Code
of Civil Procedure, 1908 (for short “the Code”), challenging an order
of the trial Court refusing to condone the delay of 862 days in
seeking to set aside an exparte decree for specific performance, the
High Court found that the exparte decree was a nullity, as it was
passed against a minor without the minor being represented by a
guardian duly appointed in terms of the procedure contemplated
1
under Order XXXII, Rule 3 of the Code. Therefore, the High Court,
exercising its power of superintendence under Article 227 of the
Constitution, set aside the exparte decree itself on condition that
the petitioners before the High Court/defendants pay a sum of
Rs.2,50,000/, representing the amount already spent by the decree
holders in purchasing stamp paper etc. Aggrieved by the said order
of the High Court, the decree holders are before us in this special
leave petition.
2. We have heard Mr. S. Nagamuthu, learned senior Counsel
appearing for the petitioners/plaintiffs and Mr. R.
Balasubramanian, learned senior counsel appearing for the
respondents/defendants.
3. In a suit O.S. No.264 of 2013 filed by the petitionersherein for
specific performance of an agreement of sale dated 25.04.2011, the
respondents were duly served with summons, but after having
entered appearance through counsel they remained exparte. The
trial Court decreed the suit exparte on 08.04.2015.
4. At this stage it may be relevant to take note of one fact,
namely, that the petitioners sought, as an alternate relief, a decree
2
for refund of the money paid with interest at 18% per annum in the
event of the Court not granting the relief of specific performance.
But the trial Court held albeit without reasons, that the petitioners
are entitled, for the primary relief of specific performance.
5. In the plaint as it was filed by the petitionersherein, the third
defendant was described as “minor S Aravindarajan, aged about 16
years, son of Sampathkumar represented by the next friend father M.
Sampathkumar”. Therefore, the petitioners had filed, along with the
plaint, an application in I.A No.981 of 2013 under Order XXXII,
Rule 3 of the Code for appointing the second respondentherein (his
father and the second defendant) as the guardian of the minor. As
noted by the High Court, the trial Court, after serving notice on the
second defendant, passed an Order in I.A.No. 981 of 2013 on
23.03.2014 to the following effect:
“Batta served. Vakalat by guardian to minor
filed. Hence this petition is closed.”
6. Seeking execution of the decree, the petitioners filed E.P No.33
of 2015. Notices were served on all the respondents in the
Execution Petition and the Execution Petition is said to have come
3
up for hearing on two dates in December2015 and on several dates
in the year 2016. Eventually the respondents were set exparte in
the Execution Petition on 18.10.2016 and the petition was allowed.
7. Thereafter the respondents filed an application in November2016 for setting aside the exparte order in the Execution Petition.
It was numbered only in the year 2017 as E.A. No.40 of 2017.
8. But in the meantime the petitioners were called upon to
deposit nonjudicial stamp papers of the value of Rs.1,98,000/ for
the execution of the sale deed. They did so and a sale deed was in
fact executed by the Court on 04.01.2017.
9. It is only thereafter that the respondents filed an application in
I.A No.142 of 2017 for condonation of the delay of 862 days in
seeking to set aside the exparte decree. This application filed on
19.09.2017 was dismissed by the trial Court by an order dated
28.11.2017, primarily on three grounds namely: (i) that there was
no proper explanation for the delay; (ii) that even the written
statement was not filed within the time stipulated in Order VIII,
Rule 7; and (iii) and that after allowing even the execution to
proceed exparte and after having allowed the sale deed to be
4
executed by the Executing Court, the respondents cannot seek
condonation of the huge delay.
10. Aggrieved by the dismissal of the petition to condone the delay
in seeking to set aside the exparte decree, the respondents filed a
revision petition under Section 115 of the Code before the High
Court. Entertaining a doubt about the appointment of a guardian
for the third defendant, the learned Judge summoned the original
records in the suit from the trial Court. Finding that I.A No.981 of
2013 filed along with the plaint for the appointment of a guardian
for the third defendant, was not properly dealt with and that there
was no appointment of a guardian for the minor as required under
Order XXXII, Rule 3, the learned Judge invoked the general power
of superintendence under Article 227 of the Constitution and set
aside the exparte decree itself, without going into the question of
delay and without examining whether there was sufficient cause for
condonation of delay. In order to ensure that the petitioners/decree
holders are not poorer after a decree (or because of the decree), the
learned Judge put the respondents on condition that they should
pay of Rs.2,50,000/ as cost to the petitionersherein on or before
5
16.10.2020, as the petitioners/decree holders had already
deposited stamp papers of the value of Rs.1,98,000/ and got the
sale deed executed.
11. It appears that pursuant to the aforesaid order of the High
Court, the respondents deposited the cost of Rs.2,50,000/ on
12.10.2020. As a consequence, the trial Court appears to have
taken up the suit for trial after framing issues. It is stated by Mr. R.
Balasubramanian, learned senior counsel for the respondents that
the suit now stands posted for examination of PW1.
12. The main grounds of attack, to the impugned order of the High
Court, as articulated by Mr. S. Nagamuthu, learned senior counsel
for the petitioners are : (i) that the High Court ought not to have
set aside an exparte decree, in a revision petition arising out of an
application under Section 5 of the Limitation Act, 1963; (ii) that the
Court was not even entitled to invoke equity in favour of the
respondents who were grossly negligent, first in defending the suit,
next in defending the executing proceedings and then in seeking to
set aside the exparte decree after nearly a year of seeking to set
aside the exparte order passed in the Execution Petition; and (iii)
6
that it was not even one of the grounds raised or points argued by
the respondentsherein in their revision petition before the High
Court either that the procedure prescribed under Order XXXII, Rule
3 of the Code was not followed or that a grave prejudice or injustice
has been caused to the defendant/minor, on account of the failure,
if any, on the part of the trial Court.
13. Mr. R. Balasubramanian, learned senior counsel appearing for
the respondents contended in response, that the revisional
jurisdiction of the High Court under Article 227 are wider in nature
and that when the High Court finds that the trial Court has not
taken care of the interest of the minor who was a party to the
proceeding, by following the procedure prescribed by law, the High
Court cannot shut its eyes on the basis of technicalities.
14. We have carefully considered the rival contentions. There is
no dispute on facts and there is no escape from the conclusion that
the respondents have been grossly negligent in defending the suit
as well as the execution proceedings. But the fact remains that
while the parties can afford to remain negligent, the Court cannot.
The High Court has found, after summoning the records from the
7
trial Court that as a matter of fact, the trial Court failed to appoint
a guardian for the third respondent/minor in a manner prescribed
by law. As pointed out earlier, an application was in fact filed by the
petitionersherein/plaintiffs under Order XXXII, Rule 3 of the Code
in I.A No.981 of 2013. The said application was closed by the trial
Court by an Order passed on 23.03.2014, which we have extracted
elsewhere. The manner in which the trial Court disposed of the
application under Order XXXII, Rule 3, is without doubt, improper
and cannot at all be sustained, especially in the teeth of the Madras
Amendment.
15. Order XXXII, Rule 3, is found in the First Schedule to the
Code. Under Section 121 of the Code, the Rules in the First
Schedule shall have effect as if enacted in the body of the Code
until annulled or altered in accordance with the provisions of
PartX, which comprises of Sections 121 to 131. The High Courts
are empowered under Section 122 of the Code to annul/alter or add
to all or any of the Rules in the First Schedule, for regulating the
procedure of the civil courts subject to their superintendence.
8
16. In exercise of such a power, the High Court of Judicature at
Madras has made Rule 3 of Order XXXII of the Code, much more
elaborate than how the Rule was originally framed.
17. In the impugned order, the learned Judge has extracted Order
XXXII, Rule 3 of the Code in its original form. But in its application
to civil courts subject to the superintendence of the Madras High
Court Order XXXII, Rule 31
actually reads as follows:
`”3. Qualifications to be a next friend or
guardian. – (1) Any person who is of sound mind and
has attained majority may act as next friend of a minor
or as his guardian for the suit:
Provided that the interest of that person is not
adverse to that of the minor and that he is not in the
case of a next friend, defendant, or in the case of a
guardian for the suit, a plaintiff.
(2) Appointed or declared guardians to be preferred
and to be superseded only for reasons recorded. –
Where a minor has a guardian appointed or declared
by competent authority no person other than the
guardian shall act as the next friend of the minor or be
appointed his guardian for the suit unless the Court
considers, for reasons to be recorded, that it is for the
minor’s welfare that another person be permitted to act
or be appointed, as the case may be.
(3) Guardians to be appointed by Court. Where the
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 the minor.
1 The amendment was made by a Notification in P. Dis. No.256 of 1938 Vide St. George Gazette, dated
1331938. Unfortunately most of the Bare Acts published in recent times and even the 19th Edition of Mulla
on the Code of Civil Procedure does not make a mention of the Notification number and date in so far as the
Madras Amendment is concerned.
9
(3A) A person appointed under subrule (3) to be
guardian for the suit for a minor shall unless his
appointment is terminated by retirement, removal or
death continue as such throughout all proceedings
arising out of the suit including proceedings in any
appellate or revisional Court and any proceeding in
execution of a decree.
(4) Appointment to be on application and where
necessary after notice to proposed guardian. 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. The application, where it is
by the plaintiff, shall set forth, in the order of their
suitability, a list of persons (with their full addresses for
service of notice in Form No. 11A set forth in Appendix
H. Hereto) who are competent and qualified to act as
guardian for the suit for the minor defendant. The Court
may, for reasons to be recorded in any particular case,
exempt the applicant from furnishing the list referred to
above.
(5) Contents of affidavit in support of the application
for appointment of guardian. The application referred
to in the above subrule whether made by the plaintiff
or on behalf of the minor defendant shall be supported
by an affidavit verifying the fact that the proposed
guardian has not or that no one of the proposed
guardians has any interest in the matters in
controversy in the suit adverse to that of the minor and
that the proposed guardian or guardians are fit persons
to be so appointed. The affidavit shall further state
according to the circumstances of each case (a)
particulars of any existing guardian appointed or
declared by competent authority, (b) the name and
address of the person, if any, who is the de facto
guardian of the minor, (c) the names and addresses of
persons, if any, who in the event of either the natural or
the de facto guardian or the guardian appointed or
declared by competent authority, not being permitted to
act, are by reason of relationship or interest or
otherwise, suitable persons to act as guardians for the
minor for the suit.
10
(6) Application for appointment of guardian to be
separate from application for bringing on record the
legal representatives of a deceased party. – An
Application for the appointment of a guardian for the
suit of a minor shall not be combined with an
application for bringing on record the legal
representatives of a deceased plaintiff or defendant.
The applications shall be by separate petitions.
(7) Notice of application to be given to persons
interested in the minor defendant other than the
proposed guardian.– No order shall be made on any
application under subrule (4) above except upon notice
to any guardian of the minor appointed or declared by
an authority competent in that behalf or where there is
no guardian, upon notice to the father or other natural
guardian of the minor, or where there is no father 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 subrule. The notice required by this subrule shall
be served six clear days before the day named in the
notice for the hearing of the application and may be in
Form No. 11 set forth in Appendix H hereto.
(8) Special provision to shorten delay in getting a
guardian appointed.Where the application is by the
plaintiff, he shall, along with his application and
affidavit referred to in subrules (4) and (5) above,
produce the necessary forms in duplicate filled in to the
extent that is possible at that stage, for the issue
simultaneous of notices to two at least of the proposed
guardians for the suit to be selected by the Court from
the list referred to in subrule (4) above together with a
duly stamped voucher indicating that the fees
prescribed for service have been paid.
If one or more of the proposed guardians signify his
or their consent to act, the Court shall appoint one of
them and intimate the fact of such appointment to the
person appointed by registered post. If no one of the
persons served signifies his consent to act, the Court
shall proceed to serve simultaneously another selected
two, if so many there be, of the persons named in the
11
list referred to in subrule (4) above but no fresh
application under subrule (4) shall be deemed
necessary. The applicant shall within three days of
intimation of unwillingness by the first set of proposed
guardians, pay the prescribed fee for service and
produce the necessary forms duly filled in.
(9) No personal shall be appointed guardian without
his consent. No person shall without his consent, be
appointed guardian for the suit. Whenever an
application is made proposing the name of a person as
guardian for the suit a notice in Form No.11 A set forth
in Appendix H hereto shall be served on the proposed
guardian, unless the applicant himself be the proposed
guardian or the proposed guardian consents.
(10) Court guardian. When to be appointedHow he
is to be placed in funds. Where the Court finds no
person fit and willing to act as guardian for the suit, the
Court may appoint any of its officers or a pleader of the
Court to be the guardian and may direct that the costs
to be incurred by that officer in the performance of the
duties as guardian shall be borne either by the parties
or by any one or more of the parties to the suit or out of
any fund in Court in which the minor is interested, and
may give directions for the repayment or allowance of
the costs as justice and the circumstances of the case
may require.
(11) Funds for a guardian other than Court guardian
to defend. When a guardian for the suit of a minor
defendant is appointed and it is made to appear to the
Court that the guardian is not in possession of any or
sufficient funds for the conduct of the suit on behalf of
the defendant and that the defendant will be prejudiced
in his defence thereby, the Court may, from time to
time, order the plaintiff to advance monies to the
guardian for purpose of his defence and all monies so
advanced shall form part of the costs of the plaintiff in
the suit. The order shall direct that the guardians, as
and when directed, shall file in Court an account of the
monies so received by him.”
12
18. There is a great deal of difference between the Rules of
Procedure laid down in Rule 3 of Order XXXII by the Central Act
and Rule 3 as applicable to civil courts subject to the
superintendence of Madras High Court. Order XXXII, Rule 3 in its
original form reads as follows:
“3. Guardian for the suit to be appointed by court
for minor defendant. (1) Where the 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 subrule.
(4A) The Court may, in any case, if it thinks fit, issue
notice under subrule (4) to the minor also.
13
(5) A person appointed under subrule (1) to be
guardian for the suit for a minor shall, unless his
appointment is terminated by retirement, 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.”
19. A comparison of the two sets of Rules show that the rules
applicable to Courts subject to the superintendence of the Madras
High Court are more elaborate and also rigorous. We may
immediately note (i) that subrules (1) and (2) of Rule 3 of the Rules
applicable to Courts subject to the superintendence of the Madras
High Court (hereinafter referred to as “applicable rules” for the
purpose of convenience), are additional requirements; (ii) that subrule (3) of Rule 3 of the ‘applicable rules’ is a reproduction of subrule (1) of Rule 3 of the original Code; (iii) that subrule (3A) of
Rule 3 of the ‘applicable rules’ is a reproduction of subrule (5) of
the Central Act; (iv) subrule (7) of Rule 3 of the ‘applicable rules’ is
an improved version of subrule (4) of Rule 3 of the Central Act.
20. More importantly subrules (4), (5), (6) and a part of subrule
(7) of Rule 3 of Order XXXII of the ‘applicable rules’ prescribe certain
additional requirements which are as follows: (i) when an
14
application for the appointment of a guardian is by the plaintiff, it
shall set forth in the order of their suitability, a list of persons with
their full addresses for service of notice in Form No.11A set forth in
Appendix H, who are competent and qualified to act as guardian for
the minor defendant; (ii) the application for appointment of a
guardian should be supported by an affidavit, not merely verifying
(as in the Central Act) the fact that the proposed guardian has no
interest in the matters in controversy adverse to that of the minor,
but also stating additional particulars including the name and
address of the defacto guardian and the names and addresses of
other suitable persons, whenever a natural or defacto guardian is
not permitted to act.
21. Admittedly, the learned Judge summoned the records from the
trial Court after entertaining a doubt about the procedure followed
by the trial Court in this case and found as a matter of fact that the
trial Court failed to appoint a guardian for the third defendant as
required by Order XXXII, Rule 3. The power of the learned Judge to
call for the records and examine the same, in a revision under
Section 115(1) of the Code is not and cannot be doubted or
15
questioned by the petitioners. It is true that the learned Judge was
dealing only with a revision petition arising out of an Order
dismissing a petition under Section 5 of the Limitation Act, 1963.
But it does not take away or curtail the jurisdiction of the High
Court to look into the records with particular reference to an
important rule of procedure, especially when the same relates to
something concerning persons under disability. The rigorous nature
of the Madras amendment to Rule 3 of Order XXXII, is perhaps to
be attributed to the wider jurisdiction that the High Court exercised
on its original side, under Clause17 of the Letters Patent and the
parens patriae jurisdiction that a Court normally exercises while
dealing with cases of minors. Therefore, we find no illegality in the
action of the High Court in summoning the original records in the
suit and finding out whether or not a guardian of a minor defendant
was appointed properly in accordance with the procedure
prescribed in Order XXXII, Rule 3, even in the absence of a specific
contention being raised by the petitioners.
22. The contention that in a revision arising out of the dismissal of
a petition under Section 5 of the Limitation Act, 1963, the High
16
Court cannot set aside the exparte decree itself, by invoking the
power under Article 227, does not appeal to us. It is too well settled
that the powers of the High Court under Article 227 are in addition
to and wider than the powers under Section 115 of the Code. In
Surya Dev Rai vs. Ram Chander Rai and Others2
, this Court
went as far as to hold that even certiorari under Article 226 can be
issued for correcting gross errors of jurisdiction of a subordinate
Court. But the correctness of the said view in so far as it related to
Article 226, was doubted by another Bench, which resulted in a
reference to a three member Bench. In Radhey Shyam & Anr. vs.
Chhabi Nath & Others3
, the three member Bench, even while
overruling Surya Dev Rai (supra) on the question of jurisdiction
under Article 226, pointed out that the jurisdiction under Article
227 is distinguishable. Therefore, we do not agree with the
contention that the High Court committed an error of jurisdiction in
invoking Article 227 and setting aside the exparte decree.
23. In fact the learned Judge also went into the question whether
a decree passed against a minor without proper appointment of a
2 (2003) 6 SCC 675
3 (2015) 5 SCC 423
17
guardian, is a nullity ipso facto or whether the same would depend
upon prejudice against the minor being established. The learned
Judge found that in this case, the minor was prejudiced.
24. It may be of interest to note that Rule 3A was inserted in
Order XXXII by CPC Amendment Act 104 of 1976. It is this Rule
that introduced for the first time into the Code, the question of
prejudice to the minor. But this Rule 3A applies only to cases
where the next friend or guardian for the suit of the minor had an
interest in the subject matter of the suit adverse to that of the
minor. This amendment was a sequel to certain conflicting opinions
on the question as to whether a decree passed in cases where the
minor was represented by a guardian who had an interest in the
subject matter of the suit adverse to that of the minor, was void or
voidable.
25. In other words the Parliament chose to introduce the element
of prejudice, specifically in relation to one category of cases under
Order XXXII, Rule 3A. The case on hand does not fall under that
category. In any case, we need not go into that question in this
case, as the learned Judge found that the minor was prejudiced.
18
26. A valiant attempt was made during the hearing, to show that
the 3rd Respondent/defendant was not a minor at all. Such a
contention was sought to be raised on the basis of the long cause
title in the execution application E.A.No.65 of 2017 where the 3rd
Respondent was described as a person aged about 24 years in the
year 2017. Therefore, it was sought to be contended that he should
have attained majority long before the ex parte decree and that
therefore the question of appointment of a guardian and the decree
becoming a nullity did not arise.
27. The said contention is to be stated only to be rejected. It was
the petitioners herein who filed the suit in the year 2013 describing
the 3rd defendant as a minor and seeking the appointment of a
guardian. Therefore, there is no place for any innovative arguments
contrary to one’s own pleadings.
28. Another contention was raised that in any event, the decree
could have been set aside only as against the 3rd Respondent and
not against all the others. But the said logic does not apply to
something that is a nullity in law.
19
29. The reliance placed by the learned counsel for the petitioners
upon the judgment of a Division Bench of the Madras High Court in
Lanka Sanyasi vs. Lanka Yerran Naidu4
is misplaced. The
question in Lanka Sanyasi (supra) was whether a person who had
become a major on the date on which a compromise decree was
passed in a suit, was entitled to challenge the compromise decree in
a subsequent suit. The subsequent suit was decreed by the First
Appellate Court and while dealing with the Second Appeal, the High
Court held in Lanka Sanyasi that a mere circumstance that a
minor defendant had attained majority during the pendency of the
suit, but not elected to continue the defence himself and to have his
guardian ad litem discharged, is not sufficient to enable him to have
the judgment passed in the suit declared as not binding on him.
Nothing turned on the provisions of Order XXXII, Rule 3 in the said
case.
30. The decision of the Travancore Cochin High Court in Ouseph
Joseph vs. Thoma Eathamma5
, relied upon by the petitioners,
4 1929 Law Weekly 455
5 AIR 1956 TC 26
20
more than helping the petitioners, confirms that the view taken in
the impugned order is correct.
31. The decision in Divya Dip Singh and others vs. Ram
Bachan Mishra and others6
, concerned the question whether the
appointment of a guardian for a minor under Order XXXII, Rule 3
will take away the right of the natural guardian. The answer was
too obvious and the same has nothing to do with the issue on hand.
32. The decision of the Rajasthan High Court in Anandram and
another vs. Madholal and others7
relied upon by the petitioners,
dealt with the question of prejudice to the minor, specially in the
context of the father filing a written statement on behalf of the
minors and admitting receipt of part consideration. In Rangammal
vs. Minor Appasami8
there was a finding on fact that the minor’s
interests were sufficiently safeguarded in the suit. Therefore, none
of these decisions relied upon by the petitioners, advance their
cause.
6 (1997) 1 SCC 504
7 AIR 1960 Raj 189
8 85 Law Weekly 574
21
33. Therefore, we find no illegality in the order of the High Court
warranting our interference under Article 136. Hence, this Special
Leave Petition is dismissed.
……………………………..J.
(INDIRA BANERJEE)
………………………………..J.
(V. RAMASUBRAMANIAN)
New Delhi
July 16, 2021
22
