h^^^^^SS A^ ^ HIGH CQURT QF CHNATTISGARH AT BjLASPUfr PETITIONER RESPONDENTS Vs W.P. No. 2992 of 1990 Bhajan Singh Arora JVth Additional Judge to the Court of District Judge, Bilaspur & others ORDER FOR CONSIDERATION Sd/- JUDGE -12-2010 HON'BLE SHRI R.N. CHANDRAKAR. J 3 o^^- ^ Sd/- R.N. Chandrakar Judge ^ POST FOR ORDER ON J'3 DECEMBER. 2010 z___ Sd/- Dhirendra Mishra Judge MieM COURT OF CMHATTISOARM AT BILASPUR Coram: Mon'bte Shri Dhirendra Mislira & KoR'bSs Shrs R.N. Chandrakar. JJ IVIlsceHaneoysPetitlonNo.2^ Petltloner Bhajan Slngh Arora, aged ^ years, Son of Sardar Gyanssngh, Resldent of Gondpara, Bilaspur, Tahsil and Distrfct Bilaspur M.P. '-^^...^ Vs. 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. !Vth AddltiQnal Judge to the C-Qurt of Disirict Judge, BJiaspur SVthCiviS Judge, Class-»,Bilaspur Laxmibal, aged 46 years, W/o Hanumanprasad; through Pawan Kumar Modi, Suman Shrinagar Stores, Ram Janto TempSe, Benipura Road, District Samastlpur (Bihar) Munnibai, aged 43 years, W/o Dvvarikaprasad AgarwaS, UrdS Bazar, P.0. Chandan Nagar, Distriet Hugli, W^t Benga! Sharadabai, aged 40 years, W/o PitamberiaS; Tulsibal, aged 38 years, W/o Nirmaikumar; Shantibai, aged 35 years; W/o Shambhuprasad Khetan; Nina Agarwal aged 32 years, D/o Rurhmai Modi; Usha Agarwal, aged 30 years, D/o Rurhmal Modj; All through Pawan Kumar Modi; Pavvan Kumar Modi, aged 28 years, S/o Rurhmal Modi, M/s Suman Shrinagar Stores, Ram Janki Temple, Benipura Road, District Samastipur (Bihar) Present: Shri Bharat Rajput, counsei for the petitioner. Shri Ankit SinghaS, counsel for respondsnts No.5, & 10. OK_DgR ( |3 .12.^}10) ^^.Ss.i.f-eS&s^^i, ^ ^^ } fc ^.Jfc^ •4y^' ^- t^-»»sg, The petitioner filed thls wrlt petttlon under Article 227 of Constitution of India questioning the legatity, propriety and valldity of the order dated 25.08.1990 passed in Clvii Revision No.04/1988 by Fourth Addittonal Judge to the Court of District Judge, Bilaspur afflrmlng the order dated 18.02.1988 in MJ.C, No.02/1978 passed by fourth Civil Judge, Class-11, Bilaspur setting aslde the ex-parte decree dated 07.10.1974 against Bhola Nath in Civll Sult No.S6-B of 1973 (parties hereinafter shall be referred to as per the description before the trial Court). 2. Briefly stated, facts giving rise to this petttion are that Bhola Nath, the defendant entered into an agreement to sate dated 10.08.1973 (Annxure-P/1) for consideration of Rs.10,000/- with the pfainttff and received Rs.5,000/- as earnest money. The plalntiff (since deceased) served a notice upon the defendant for execution of the registered sale deed and thereafter filed a suit for refund of earnest money registered as Civil Suit No.56-8/73 against Bhola Nath and his younger brother Pawan Kumar, a mtnor. After the summons returned unserved with an endorsement of tncorrect address, the plaintiff was permjtted to effect substituted servlce by publication of summons in dally newspaper and accorctingly, summons were published in the newspaper on 11.07.1974 givtng the date of hearing as 13.07.1974. Thereafter, the defendant was proceeded ex-parte on 29.08.1974. Shri D.R. Sharma, an advocate was appointed as guardlan ad litem for mlnor defendant No.2. The plaintift was permitted to amend the ptaint and delete the name of mlnor defendant No.2 from the array of the defendants on 05.09.1974. After the amendment, no fresh summons were issued to the defendant who was proceeded ex-parte and on the same day, l.e. 05.09.1974, ex-parte evidence was recorded and ex-parte decree was passed on ^ P{W%3»A ig^^^^.< 07.10.19T4 and the same was put in executton. The house which was agreed to be sold by the defendant was attached on 25th October, 1976 and soid In auction to Ram Prasad Yadav, who was also put in possession of the houseon 12.03.1977. 3. The defendant-Bhola Nath through his next friend Smt. Munni Bai, flled an application (Annexure-P/3) on 02.01.1978 for settlng aslde ex-parte decree on the ground that the defendant was of unsound rrtnd since 1972-73 after about three years from the death of his father. There was no due service of summons upon him and he learnt about the proceedings a week before the next friend came to know about the ex-parte decree and the applicatlon is filed within 30 days from the date of knowiedge of the ex-parte decree. During pendency of the applteation, the defendant died on"05.01.1984 and his (egal representatives were brought on record. The plaintiff/decree-holder also died and his legal representatives were brought on record on 08.10.1995. 4. The trial Court after appraisal of evidence adduced by the respective parties and also on the ground that the process in the execution case dated 14.02.1976 and 14.07.1976 was received unserved with an endorsement that judgment debtor is not sane since last four years, recorded a categorical flnding that the defendant became jnsane completely slnce 1972 and his insanity was extreme, he was sent to Ranchl for treatmerrt in the year 1972-73 and accordingly, set aside the ex-parte decree. The revlslon against the order of trlal Court was further dismissed. 5. During the course of the argument, apart from other arguments, an objection was ratsed against the maintalnabillty of the applieatlon under Order 9 Rute 13 of ^•'"^.^^., ^q. CPC before the trial Court on the ground that the ex-parte decree is passed against a lunatlc or a mlnor writhout appointlng a next friend, such person hasto institute a suit and the applicatlon under Order 9 Rule 13 CPC is not maintalnable as in such a case, such defendant is not consldered to be a partv to the suit. 6. Learned Sjngle Judge; after referring to numerous conflicting judgments on the issue delivered by dlfferent High Courts, observed that (he questlon raised by petitloner ts of general jmportanoe and of day-to-day occurrence and the same deserves to be authoritatively decided and accordingly, referred the matter for authorltative decision by proper Bench and consequently, the matter has been referred to Diviston Bench. It has been further observed that the trial Court has atlowed the apptication for setting aside the ex-parte decree by recording a categorical flndlng that srt the time of instttution of suit till the date the decree was passed, the defendant was of unsound mind on whom the summons were not served and the ex-parte decree so passed without appointment of guardian was a nulUty. The revlslon preferred agajnst the order of trial Court has been further dismissed. 7. The only question that remains to be decided in the petition is - whether an application under Order 9 Rule 13 CPC for setting aside ex-parte decree against a minor or a person of unsound mind who was not represented through his next friend or duly appointed guardlan Is maintainable? 8. In the matter of SettiPwamanand and anottw^ys. Lalfhmlchand reported in Al 1922 Nagpur 249(2), rt was held by learned Slngle Judge that minor's appMcatlon for setting aside ex-parte decree agalnst hlra under Order 9 Rule 13 CPC is not maintainable. (t has been observed that a mlnor who is not represented in a sutt by a prqaerly ^ '^. ^:;. —y •"'.—^•'•"' -5- appointed guardian (s not a party to the sult in the proper sense of the term and proceedings in the suit cannot bind hlm. 9. The Djvlsion Bench of Allahabad High Court in the matter of MotLC^aijcf Vs. Bafram i?as reoortedin AIR 1933 Allahabad 116, took a contrary vtew and held that the Court can set aside an ex-parte decree on appUcation under Order 9 Rule 13 CPC against a minor and order new guardian to be appointed where the guardian was not properly appointed and he was negtjgent and the minor cannot be forced to flle fresh suit. This issue was again considered by the Divlsion Bench of Travancore-Cochln High Court in the matter of Kochunaravanl Amma NalSni Vs. Velu Menon GQVinda Afenon reported in AIR 19SS Travancore-Cochln 168 wherein, it was held that one of the remedies open to a mlnor against whom a decree Is passed ex-parte as a result of the gross nealiaence on the part of the auardian ad litem in the conduct of the suit Is to apply under Order 9 Rule 13 CPC for setting aslde the ex-parte decree. However, learned single Judge of the High Court of Madhya Bharat tndore Bench in the matter of Gendalal vs. Sitabal Bfiaawat Teoorted tn 1987 Madhya Bharat 10 (AIR V 44 CF Jan.) held that ex-parte ctecree agalnst minor or persons of unsound mjnd not properly represented cannot apply under Order 9 Rule 13 CPC to set aside ex-parte decree as a person of unsound mlnd who is not represented accordlng to law cannot be deemed to be party to proceedlngs. 10. Similar view has been taken by leamed Single Judge of the Madhya Pradesh Hlgh Court in the matter of Vlfay Kumar vs. Madhawao reported in 1984 JU 388. In the matter of Ram Chanclra Arva vs. Man Slneih and anottfer reoorted in AIR 1968 Supreme Court 954, a sult y^. W'M^ '. ' i f- L W •—'^^^^^'5^i^^ agalnst lunatto for possession of a house was decreed and in executlon of that decree the house was sold and the sate certificate was issued. However, the defendant continued to live In the suit house. The defendant dled leaving no heir and the possesslon of the property was taken by the servants of the Maharaja as the defendant was a subject of the Maharaja. A suit was flled by the son of the earlier decree holder for possesslon of the house. However, the same was fjnally dismlssed by the Hlgh Court on the ground that the decree was passed agalnst a lunatlc and as such nullity and therefore, the sale hetd tn execution of that decree was vold. 11. In the matter of Gi!^i Devi & aiwther vs. Indrsnath Sajcena & others reported in 1982 JU 81 atso, learned Single Judge held that where a sutt is flled against a minor defendant and the defendant is not properly represented; it is the duty of the Court to see that the Interests of the minors are guarded by appolnting the guardran. AppKcation under Order 9 Rule 13 CPC on behalf of the minor was allowed and the decree was set aslde. However, learned Single Judge of the Gauhati Hlgh Court in the matter of Budhal HeDal Chanflra Lalit Mohan Saha Finn and another vs. Sudhaiwslw Ranlan Dev and ot^ers reported in AIR 1878 ©auhati7 hetd that appljcation under Order 9 Rute 13 CPC for setting aside ex-parte decree by a minor who was not represented by a guardian is not maintatnable and it has been observed that there was no necessity to set astde the decree so far as the minor was concemed. Similar view has been taken by Patna Htgh Court in the matter of RamtosuSan Kai and otfters Paltan Paswan and oihws reported in AtR 1877 PATNA 1, wherein it has been held that a decree agalnst minor defendant without properiy represented in a suit is not binding upon such mlnor. .^, -^-,\ ^ ..•y ^^- Such a decree being a nulltty and not btndlng upon hlm is not requlred to be set aside. However, Division Bench of Patna Hlah Court in the matter of Md. Masan and pthers vs.JVItl. Abbas^^^^^^^^ others reported in AIR 1984 PATNA 170 he(d that application unde: Order 9 Rule 13 CPC provides a proper remedy even to a minor in a case where notices have not been properiy served or where a minor was prevented by any sufftelent cause from appearing in the suit. It has been further observed that there may be another remedy available to him, but the remedy under Order 9 Rule 13 of the Code cannot be said to be barred in such circumstances. 12. We have referred to various judgments of the different Hiah Courts on this issue. There is a consensus of opinion that a decree against a minor or a person of unsound mind wlthout impleadlng sueh person through a duly appointed legal guardian is nultlty. However. there is a conflict in the opjnion about the remedies aaalnst such decrees available to the defendants. 13. We are of the constdered oplnion that where an ex-parte decree is procured against a (unatic by effecting summons of the suit through substituted servlce, there is no bar to such defendant to raise objectlon in the executton proceedlngs or to apply for settlng aside the ex-parte decree on the ground of ImproDer and jnvalld service of summons under Order 9 Rule 13 of CPC though such person may have other remedies also; but the remedy under Order 9 Rule 13 of the Cocte cannot be sald to be barred in such circumstances. 14. In the matter of Ram Chandra Arya (supra); the Supreme Court held that a decree agalnst a pereon of unsound mind is nullity. Subsequent suit for recovery of the possession of the suit property against others who '.. i"""'^ .^l'? •, / ,•- '•'"'^'. ^i- ^^^^^^ts^- obtained the possession from the judgment clebtor oan be resisted by the persons in occupation on the ground that a decree against person of unsound mlnd was nullity and such person of unsound mind or persons claiming through hlm cannot be directed to flte separate proceedlng for declaring the earlier decree as nulllty under Order 21 Rule 89 & 90 of CPC. 15. On the basis of the aforesaid discussions and following decislons rendered In Kochunarayanl Amma Nalini Vs. Velu Menon Govinda Menon (supra), Girja Devi & another vs. Indranath Saxena & others (supra) and Md. Hasan and others vs. Md. Abbas and others (supra), we answer the questlon referred to us by learned Single Judge in the atflrmative and we hold that the applicatton under Order 9 Rule 13 of CPC for setting aside ex-parte decree against a mlnor or a person of unsound mlnd, who was not represented through his next friend or duly appolnted guardian is malntainable. 16. The trial Court has recorded a categorical flnding of fact based on the evidence available on record that at the time of institution of suit till the date of decree was passed, the defendant was of unsound mind on whom summonswere not served and an ex-parte ctecree has been procured without appointment of guardlan and the same is nullity and the above finding has been further confirmed in the revision by the petltioner. 17. We are of the opinlon that there is no perveretty|n the above findtng of fact recorded by the Courts below and we find no substance in this petition and we accordingly dtsmiss the same. __ - Pnya Sd/- Dhirendra Mishra Judge Sd/- R.N. Chandrakar Judge