K.P. Nataranjan vs. Muthalammal - (Supreme Court) (16 Jul 2021)

Ex-Parte Decree passed against a minor not represented by a duly appointed guardian is a nullity

MANU/SC/0452/2021

Civil

In a Civil Revision Petition filed under Section 115 of the Code of Civil Procedure, 1908 (CPC), challenging an order of the trial Court refusing to condone the delay of 862 days in seeking to set aside an ex-¬parte decree for specific performance, the High Court found that, the ex-¬parte 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 under Order XXXII, Rule 3 of the CPC. Therefore, the High Court set aside the ex¬parte decree. Aggrieved by the said order of the High Court, the decree holders have filed present petition.

There is no dispute on facts 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 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.

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.

There is 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, even in the absence of a specific contention being raised by the Petitioners. Therefore, there is no illegality in the order of the High Court warranting interference under Article 136. Petition dismissed.

Tags : EX¬PARTE DECREE MINOR NULLITY