IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 20TH JANUARY 2010 / 30TH POUSHA 1931 CRP.No. 18 of 2010() -------------------- OS.338/1996 of ADDL.SUB COURT,KOLLAM .................... PETITIONER/2ND APPLICANT/3RD DEFENDANT: ----------------------------------------------------------- M.VISHNU MOHAN, GOURI NIVAS, THEKKEVILA P.O., KOLLAM. BY ADV. SRI.S.A. RAZZAK RESPONDENT(S)/PLAINTIFF - DECREE HOLDER & DEFENDANTS 1 & 2/ JUDGMENT DEBTORS: ----------------------------------------------------------- 1. VALSALA AMMA, D/O.GOURI KUTTY AMMA, FROM VADAKKEDATH VEEDU, NEDUMPANA CHERI, NEDUMPANA VILLAGE, RESIDING AT PONAKATHU, MAVELIKKARA P.O. 2. K.REMADEVI, GAURI NIVAS / VISNU VIHAR, THEKKEVILA P.O., KOLLAM. 3. R.VEENA MOHAN, GAURI NIVAS / VISNU VIHAR THEKKEVILA P.O., KOLLAM. THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 20/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- C.R.P.NO.18 OF 2010 () ----------------------------------- Dated this the 20th day of January, 2010 O R D E R The revision is directed against the order dated 23.6.2009 in I.A.No.1543 of 2006 in O.S.No.338 of 1996 on the file of the Additional Sub Court, Kollam. Petitioner is the 2nd applicant in the above I.A. which had been filed with another to set aside the ex parte decree dated 22.7.1996 passed against both the applicants in the above suit, which was one for money. The gist of the case canvassed for setting aside the ex parte decree against the two applicants is that they were minors when the suit was proceeded against them with their mother, the 1st defendant who was shown as their guardian in the suit. She was not a proper person to be appointed as their guardian and there was gross negligence on her part in contesting the suit on behalf of the applicants, the minors, is the case of the petitioner. The mother had adverse interest against the applicants, the minors, and her CRP.18/10 2 negligence in defending the suit led to the passing of the ex parte decree and it has to be treated as null and void is the further case of the petitioners. Though in execution of the ex parte decree passed against the minors, an immovable property in which they too had interest had been brought to sale and purchased by the plaintiff in the suit (the decree holder), and the sale stands confirmed, but, the delivery to be effected, according to the petitioners/applicants, the decree passed against them is liable to be set aside as the suit had proceeded without appointment of a proper guardian for the minors. To the above application, the 1st respondent/decree holder filed objections, in which, among other contentions, the maintainability of the petition was also challenged. The learned Munsiff, after hearing both sides, dismissed the application vide the order impugned in the revision. 2. I heard the learned counsel for the petitioner. Having regard to the submissions made and taking note of the facts and circumstances presented, I find no notice to the respondents is necessary, and, hence, it is dispensed with. A CRP.18/10 3 number of judicial pronouncements rendered by several High Courts has been canvassed before me by the learned counsel to contend that the decree passed against a minor without appointment of a proper guardian is a nullity. After perusing the order passed by the learned Sub Judge, assailed in the revision, I find no merit in the objections canvassed to impeach the execution of the decree against the applicants, who were minors when the suit was instituted against them with summons served on their mother, the 1st defendant as their guardian. The 1st defendant mother did not enter appearance, and an ex parte decree was passed in the suit. In execution of the ex parte decree, it is not disputed that an immovable property in which the petitioners too had interest had been brought to sale and the sale has been made absolute and what remain is only delivery of the property sold to the auction purchaser who happens to be the decree holder in the suit. The case now advanced by the petitioner to challenge the decree executed is that there was no appointment of proper guardian to protect the interest of the applicants, who were minors in the suit, and the suit proceeded without CRP.18/10 4 appointing a court guardian for them. Further contention is that the mother, who was shown as guardian of the petitioners, who were minors, had adverse interest against them, and therefore, not a proper person to represent them as their guardian. A decree passed against the petitioners, in such circumstances, without appointment of a court guardian representing them, according to the counsel, is null and void and such a challenge can be set up at any stage even after sale in execution is made absolute, and delivery of the property alone remained. 3. The impugned order shows one among the petitioners had attained majority 31/2 years prior to the filing of the present petition and that the other 2nd petitioner, who continued to be a minor, represented by his mother as next friend, had resisted the execution when the property belonging to them was brought to sale. In fact, an application had also been moved after the sale was over by the 1st petitioner along with their mother, who represented the 2nd petitioner, the minor, also, to set aside the sale and it had CRP.18/10 5 been dismissed. Leaving open all those matters which are adverted to in the impugned order passed by the leaned Sub Judge repelling the case of the petitioners for impeaching the decree as void, it is to be noted that the challenges pressed into service by the petitioners could not have been entertained by the execution court. In the suit, admittedly summons was issued to the 1st defendant mother as the guardian of the minor defendant, the present petitioners herein. After accepting summons on her behalf and also on behalf of the minors as their guardian, she failed to enter appearance and she was declared ex parte, which later led to passing of the decree ex parte against all the defendants in common. When the mother guardian failed to appear and contest the suit on behalf of the minors, a court guardian should have been appointed and the decree passed without doing so is a nullity is the challenge canvassed. The changes brought about under law by introduction of Rule 3-A of Order XXXII by the Amendment Act 104 of 1976 in the CPC has a direct impact in examining the challenge canvassed that decree passed against a minor without appointment of a proper guardian is a CRP.18/10 6 nullity. Rule 3-A of Order XXXII of the CPC reads thus: [3-A. Decree against minor not to be set aside unless prejudice has been caused to his interest:- (1) No decree passed against a minor shall 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 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 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 interests of the minor. Where the ground of minority is canvassed as an afterthought to resist execution, the decree cannot be stated to be a nullity or inexecutable merely on the ground of absence of a formal order of appointment of a guardian of a minor defendant. Where a minor defendant attained majority during the continuation of the execution proceedings and he resisted such execution at various stages without raising any CRP.18/10 7 ground that the decree executed is a nullity, he cannot be allowed to stall the further steps in execution after the sale is over. 4. When the sale has become absolute, what remained to be done in execution is only issue of a sale certificate in favour of the auction purchaser which essentially is an order passed by the court on the administrative side and that is not a judicial order. After the sale is over and it has been made absolute turning down the challenge against such sale, on whatever grounds raised by the petitioners with their mother, the 1st defendant, it is seen, the present challenge that the decree is void has been canvassed by the petitioners contending that there was no proper appointment of guardian for them in the suit. Where a minor has not been properly represented in the suit, he is not entitled to ignore the decree passed, but he should sue to set aside the decree, since the decree passed against him is voidable and not void. When a decree is passed in contravention of the procedure prescribed in Rule 4 (1) of Order XXXII of the CPC, it is not void, but only CRP.18/10 8 voidable by, or on behalf of, the minor. There is no merit in the revision, and it is dismissed. S.S.SATHEESACHANDRAN JUDGE prp