In the High Court of Punjab and Haryana at Chandigarh Civil Revision No. 1702 of 2009 (O&M) Date of decision: September 18, 2009 Bharpur Singh .. Petitioner Vs. Paramjit Kaur and others .. Respondents Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. Manish Kumar Singla, Advocate for the petitioner. Mr. Tejinder K. Joshi, Advocate for the respondents. A.N. Jindal, J This revision petition is directed against the order dated 9.12.2008 passed by the Civil Judge (Sr. Division), Sangrur accepting the objection petition preferred by Paramjit Kaur natural guardian of minors Bikramjit Singh and Navneet Kaur (now respondents No.2 and 3) and dismissing the execution filed by the plaintiff-petitioner Bharpur Singh (herein referred as 'the petitioner'). The prime question needs to be considered in this case is “whether minors remained unrepresented during the pendency of the suit and needed to be represented through the guardian by a specific order of the court?” The factual background of the case is that the petitioner filed a suit against Paramjit Kaur and her minor son and daughter for recovery of Rs.27,500/- which was decreed on 10.9.2003 regarding which execution application No.23 of 27.3.2004 was filed by him. However, Paramjit Kaur on behalf of the minors moved objection petition that Bikramjit Singh and Navneet Kaur (since minors) were required to be represented in the suit through a guardian as appointed by the court. No application under Order 32 Rule 3 of CPC having been filed by the petitioner for getting appointment of these minors, the decree was nullity and was not executable against them. It was further added by her that the objectors had not received anything from their father, therefore, they were not bound to make any payment of the decretal amount. Civil Revision No. 1702 of 2009 -2- This application was contested by the petitioner stating that the suit was contested by Paramjit Kaur in her personal capacity as well as being the guardian of the minors. She neither raised any objection in the suit nor refused to accept summons on behalf of the minors. Paramjit Kaur gave her address as well as of the minors of village Toori, therefore, she now cannot say that she started residing at her parental house. Since the minors were duly represented and she contested on their behalf, the interests of the minors are not clashing with her interest, therefore, the execution application could not be dismissed. From the pleadings of the parties, the trial court framed the following issues :- 1. Whether the decree passed against the minor objectors without appointment of guardian is nullity?OP-Objector 2. Whether the objectors are not liable to make payment of decretal amount?OP- Objector 3. Whether objections are not maintainable in the present form?OP-DH 4. Relief. Both the parties led evidence. The executing court while holding that minors were not duly represented; no application as per mandatory provisions as enshrined under Order 32 Rule 3 CPC was filed; and Paramjit Kaur contested in her individual capacity, therefore, the decree was not valid qua them. Even otherwise the minors have not received any property from their father, therefore, the property received by them from their grand father cannot be attached. There is no denying a fact that Bharpur Singh filed a suit against Paramjit Kaur in her personal capacity and against Bikramjit Singh and Navneet Kaur minor son and daughter of Sukhwinder Singh under the guardianship of Paramjit Kaur widow of Sukhwinder Singh (their mother). Undisputedly, Paramjit Kaur being the mother is the natural guardian of Bikramjit Singh and Navneet Kaur. The petitioner listed the name of the guardian Paramjit Kaur in the title of the plaint which certainly would amount to furnishing list of guardians. There is also no denying a fact that Paramjit Kaur never refused to act or contest on their behalf which may Civil Revision No. 1702 of 2009 -3- necessitate the petitioner to file application and obligate the court to make appointment of guardian. From the frame of the suit, it transpires that the interests of respondent No.1 were not clashing with the interest of the respondents No.2 and 3. The respondent No.1 in her affidavit filed in the suit, while appearing as DW-1 gave address of village Toori and the same was given in the execution application while appearing as DW-1. It is admitted by the respondent No.1 that minors are living at village Toori. She also did not point out as to who was acting as their guardian in her case. Mere illegality that no application under Order 32 Rule 3 & 4 CPC was moved for appointment of the guardian does not vitiate the decree as passing of the decree has resulted into no injustice. Moreover, no decree passed against the minor shall be set aside merely on the ground that next friend or the guardian for the suit of the minor had an interest in the subject matter of the suit adverse to that of the minor, but such decree could be set aside only if by reason of such adverse interest of the guardian or the next friend a prejudice has been caused to the interest of the minor. In the present case, it was a money suit wherein interest of the minors as well as the guardian were the same and the suit having been contested by the mother i.e. natural guardian hotly and no prejudice has been caused on account of the fact that she being the co-defendant contesting the suit while causing prejudice to the rights of the minors. In order to remove the ambiguities and technicalities so that decree may not be frustrated due to certain technicalities the rule 3A was inserted by the Code of Civil Procedure (Amendment) Act, 1976 which reads as under :- “3A. Decree against minor not to be set aside unless prejudice has been caused to his interest - (1) No decree passed against a minor can be set aside merely on the ground that 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, but the fact that by reason of such adverse interest of the next friend or the guardian for the suit, prejudice has been caused to the interests of the minor, shall be a ground for setting aside the decree. (2) Nothing in this rule shall preclude the minor from Civil Revision No. 1702 of 2009 -4- obtaining any relief available under any law by reason of the misconduct or gross negligence on the part of the next friend or guardian for the suit resulting in prejudice to the interest of the minor.” Gross and culpable negligence on the part of the guardian may be sufficient ground for the minors to set aside the decree against them, but that does not apply to this case as the same guardian who had contested the suit on their behalf as well as in her personal capacity has come up with the objection petition. She never objected during the pendency of the suit that she withdraws from her guardianship or refused to act as guardian; does not want to contest on their behalf; or her interest is adverse to that of the minors. Thus, it would not be safe for her to say that minors were not duly presented in the suit and decree should be set aside on the ground that they were not properly represented. She has also not pointed out any prejudice which may have been caused to the minors for non compliance of the mandatory provisions of Order 32 Rules 3 & 4 CPC. As regards the other plea that the property in the hands of the minors cannot be attached, copy of the jamabandi produced on the record prima facie shows that Kandhara Singh vide mutation of inheritance No.688 has given his property to his sons in equal share i.e. Gurmeet Singh, Avtar Singh and Gurmukh Singh and also to Bikramjit Singh being son of Sukhwinder Singh who had pre-deceased Kandhara Singh. Thus, it cannot be said that the property was directly received by Sukhwinder Singh from Kandhara Singh but he had received the same due to the death of Sukhwinder Singh their father. As such, the property sought to be attached having received by the minors in lieu of their father Sukhwinder Singh from Kandhara Singh, the same cannot be absolved from the attachment. In the result, findings returned by the executing court on issues No.1 and 2 stand reversed. However, findings returned on issue No.3 are allowed to remain intact. Consequently, I accept this petition, set aside the impugned order and direct the executing court to proceed in accordance with law. September 18, 2009 (A.N. Jindal) deepak Judge