1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5095 OF 2008 Smt.Anjanabai Kashinath Pawar .. Petitioner versus Subhash Kashinath Pawar & Ors. .. Respondents Mr.Prashant Patil for the petitioner. Mr.Uday Warunjikar for respondent Nos.1 and 2. CORAM : A.S.OKA, J. DATE : 9th October 2009. JUDGMENT: 1) On 16th July 2008, this court issued notice for final disposal at admission stage. Accordingly on 1 October 2009, submissions of the learned counsel appearing for the parties were heard. By this writ petition under article 227 of the constitution of India, the petitioner who is the original plaintiff/decree holder has taken an exception to the judgement and order dated 23 rd March 2006 by which the learned trial judge, in an execution application filed by the petitioner, came to the conclusion that the decree passed in favour of the petitioner was not binding on the first and second respondents who were the fourth and sixth defendants. 2) The petitioner filed a suit to for partition and possession. The 2 petitioner also claimed relief of declaration and injunction. The trial court partly decreed the suit and passed a decree for partition and separate possession. The prayer for declaration and injunction was rejected. The petitioner preferred an appeal against the said decree. The respondents also preferred a separate appeal. The appeal preferred by the petitioner was partly allowed and the appeal preferred by the respondent was dismissed. A second appeal preferred by the respondents has been dismissed. Thereafter, the petitioner filed an execution application before the trial court. In the said application, the first and second respondents made an application and contended that when the suit was filed, both of them were minors. The said application made by the first and second respondents at Exhibit 33 was opposed by the petitioner by filing a reply. In the said reply, the petitioner contended that the said contention was not raised by the said respondents either in the first appeal or in the second appeal. By the impugned order, the learned trial judge held that the decree was not binding on the first and second respondents as on the date of the institution of the suit, both of them where Minors. The learned trial judge held that the Minors were not represented by any Guardian. 3) The learned counsel appearing for the petitioner submitted that even assuming that the first and second respondents where Minors, they were represented by the first defendant who was their natural Guardian. He placed reliance on a decision of this court in the case of Manik Dyandeo 3 Gore versus Dajiram Vithoba Gore and others (2007(3)Bombay cases reporter 315). He submitted that assuming that there is any illegality in the decree, the same cannot be said to be void. He placed reliance on a decision of this court in the case of Savitribai A. Salvi versus Suman Navgire and others (2009 (5) Maharashtra Law Journal 387). He submitted that the the trial court in execution application could not have held that the decree is not binding on the first and second respondents. He pointed out that there is no finding recorded that the decree is nullity or that the same is without jurisdiction. He submitted that the impugned order is illegal. 4) The learned counsel appearing for the first and second respondents submitted that there is no dispute that in the suit no Guardian was appointed to represent the first and second respondents. He submitted that the first and second respondents were not properly represented in the suit. He submitted that the illegality was never cured. He submitted that the decree passed against the Minors was nullity. He submitted that the effect of the impugned order is that the decree cannot be executed against the first and second respondents. He, therefore ,submitted that no interference was called for with the impugned order. 5) I have given a careful consideration to the submissions. The contention raised in the application at Exhibit 30 was that the decree was not binding on the first and second respondents in as much as on the date of 4 institution of the suit the said respondents were Minors and were not represented by a Guardian. At this stage it will be worth considering a decision of the Apex Court in the case of Balvant N. Viswamitra v. Yadav Sadashiv Mule, [(2004) 8 SCC 706]. In paragraph 9, the Apex Court held thus: “9. The main question which arises for our consideration is whether the decree passed by the trial court can be said to be “null” and “void”. In our opinion, the law on the point is well settled. The distinction between a decree which is void and a decree which is wrong, incorrect, irregular or not in accordance with law cannot be overlooked or ignored. Where a court lacks inherent jurisdiction in passing a decree or making an order, a decree or order passed by such court would be without jurisdiction, non est and void ab initio. A defect of jurisdiction of the court goes to the root of the matter and strikes at the very authority of the court to pass a decree or make an order. Such defect has always been treated as basic and fundamental and a decree or order passed by a court or an authority having no jurisdiction is a nullity. Validity of such decree or order can be challenged at any stage, even in execution or collateral proceedings.” The Apex Court after considering its earlier decisions proceeded to hold that: “ From the above decisions, it is amply clear that all irregular or wrong 5 decrees or orders are not necessarily null and void. An erroneous or illegal decision, which is not void, cannot be objected in execution or collateral proceedings” (underline supplied) 6) In the present case, it must be noted here that none of the parties raised a contention during the pendency of the suit that any of the defendants were Minors. The respondents preferred an appeal against the decree in which first and second respondents were shown as major. Even in the second appeal preferred by them, no such contention was raised. The suit was contested by the first and second respondents. They preferred first as a second appeals against The decree. It must be noted here that the mother, brother and sister of the first and second respondents were party defendants to the suit and they also did not raise any such contention regarding minority of the first and second respondents. Thus, the natural Guardian of the first and second respondents was a party to the suit who contested the suit. Therefore what can be said is that the procedural requirement under order XXXII of the Code of Civil Procedure, 1908 was not complied with. In the circumstances, at highest there was an illegality committed by the trial court. No prejudice is shown to have been caused to the first and second respondents as a result of the said illegality. The illegality does not affect the jurisdiction of the trial court. Such illegality cannot be equated with nullity. 6 7) A careful perusal of the impugned order shows that the learned trial judge has held that the decree is obtained fraudulently as the petitioner suppressed the fact that the first and second respondents were Minors. The trial court held that as the Minors were not represented by their Guardian, the decree was nullity. The learned trial judge has completely overlooked distinction between an illegality and nullity . In view of the law laid down by the apex court ,the decree cannot be said to be a nullity. At highest it can be said to be illegal. The decree was very much executable. Hence, the trial court has committed an error by holding that the decree was not binding on the first and second respondents. 8) Hence I pass following order: a) The impugned order is quashed and set aside. The application at Exhibit 33 stands dismissed. b) The petition is allowed accordingly. (A.S.OKA,J)