| Headnote |
Code of Civil Procedure, 1908: Or.XXXII, r.3 – Suit for specific performance filed by the petitioner – Respondents-defendants after having entered appearance through counsel, remained ex parte – In the plaint, the third defendant was described as minor represented by the next friend (minor’s father) – Petitioners had filed along with the plaint, an application under Or. XXXII, r.3 for appointing second respondent (minor’s father) as guardian – Petitioner had also sought alternate relief, a decree for refund of the money paid with interest in the event of the Court not granting the relief of specific performance – However, trial court passed ex parte decree holding petitioner entitled to relief of specific performance – Even in execution proceedings, respondents were set ex parte and execution petition was allowed – Thereafter, respondents filed application for setting aside ex parte order in execution petition – Meanwhile, petitioners were called upon to deposit non-judicial stamp papers of Rs.1,98,000/- for execution of sale deed – They did so and sale deed was executed – It was only thereafter that respondents filed application for condonation of the delay of 862 days for setting aside the ex-parte decree – This application was dismissed by trial court – Aggrieved respondents filed revision petition under s.115 of the Code before High Court – Entertaining a doubt about appointment of a guardian, High Court summoned original records – Finding that I.A filed along with the plaint for the appointment of guardian was not properly dealt with and that there was no appointment of a guardian for minor as required under Or.XXXII, r.3, High Court invoked the general power of superintendence under Art.227 of the Constitution and set aside ex-parte 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), High Court put the respondents on condition that they should pay of Rs.2,50,000/- as cost to petitioners as the petitioners/decree holders had already deposited stamp papers and got the sale deed executed – Respondents deposited cost of Rs.2,50,000/- – As a consequence, trial court took up the suit for trial after framing issues – Aggrieved petitioner filed instant special leave petition – Held: No dispute on facts that the respondents were grossly negligent in defending the suit as well as the execution proceedings – However, High Court had found, after summoning the records from trial court that as a matter of fact, trial Court failed to appoint a guardian for the minor in a manner prescribed by law – An application was in fact filed by petitioners under Or. XXXII, r.3 – The said application was closed by trial Court – The manner in which the trial Court disposed of the application under Or.XXXII, r.3 is improper and cannot at all be sustained – It is true that High Court was dealing only with a revision petition arising out of an order dismissing a petition under s.5 of the Limitation Act, 1963 – But it does not take away or curtail the jurisdiction of 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 r.3 of Or.XXXII, is perhaps to be attributed to the wider jurisdiction that the High Court exercised on its original side, under Clause-17 of the Letters Patent and the parens patriae jurisdiction that a Court normally exercises while dealing with cases of minors – Therefore, 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 in accordance with the procedure prescribed in Or.XXXII, r.3, even in the absence of a specific contention being raised by the petitioners – The contention that in a revision arising out of the dismissal of a petition under s.5 of the Limitation Act, 1963, the High Court cannot set aside the ex-parte decree itself, by invoking the power under Art.227 is not acceptable – It is too well settled that the powers of the High Court under Art.227 are in addition to and wider than the powers under s.115 of the Code – High Court did not commit error of jurisdiction in invoking Art.227 and setting aside the ex-parte decree – In fact High Court also went into the question whether a decree passed against a minor without proper appointment of a guardian, is a nullity ipso facto or whether the same would depend upon prejudice against the minor being established – High Court also found that in this case, the minor was prejudiced. |
