Docid # IndiaLawLib/882526

(2011) AIR(Chhattisgarh) 89 : (2011) 2 MPJR 26

CHHATTISGARH HIGH COURT
FULL BENCH
( Before : R.N. Chandrakar, J; Dhirendra Mishra, J )

BHAJAN SINGH ARORA — Appellant

Vs.

IVTH ADDITIONAL JUDGE TO THE COURT OF DISTRICT JUDGE, BILASPUR AND OTHERS —
Respondent
Miscellaneous Petition No. 2992 of 1990
Decided on : 13-12-2010

Civil Procedure Code, 1908 (CPC) - Order 21 Rule 89, Order 21 Rule 90, Order 9 Rule 13
Constitution of India, 1950 - Article 227

Civil Procedure Code, 1908 — Order 9, Rule 13 — Setting aside ex parte decree — Where an ex
parte decree is procured against a lunatic by effecting summons of suit through substituted
service, there is no bar to such defendant to raise objection in execution proceedings or to
apply for setting aside ex parte decree on the ground of improper and invalid service of
summons under Order 9, Rule 13 — Remedy under Order 9, Rule 13 cannot be said to be
barred in such circumstances — Application under Order 9, Rule 13 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 guardian is maintainable
Cases Referred

Ram Chandra Arya Vs. Man Singh and Another, AIR 1968 SC 954 : (1968) 2 SCR 572
Md. Hasan and Others Vs. Md. Abbas and Others, AIR 1984 Patna 170 : (1984) PLJR 499
Moti Chand Vs. Balram Das, AIR 1933 All 116 : (1933) ILR (All) 136
ORDER

1. The Petitioner filed this writ petition under Article 227 of Constitution of India questioning the legality, propriety
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and validity of the order dated 25-8-1990 passed in Civil Revision No. 04/1988 by Fourth Additional Judge to the Court

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of District Judge, Bilaspur affirming the order dated 18-2-1988 in M.J.C. No. 02/1978 passed by Fourth Civil Judge,

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Class-II, Bilaspur setting aside the ex parte decree dated 7-10-1974 against Bhola Nath in Civil Suit No. 56-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 petition are w
that Bhola Nath, the Defendant entered into an agreement to sale
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aL amoney
dated 10-8-1973 (Annexure-P/1) for consideration of Rs. 10,000/- with the Plaintiff and received Rs. 5,000/- as

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earnest money. The Plaintiff (since deceased) served notice upon the Defendant for execution of the registered sale

and his younger brother Pawan Kumar, adminor. After the summons returned unserved with an endorsement of
deed and thereafter filed a suit for refund of earnest registered as Civil Suit No. 56-B/73 against Bhola Nam
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incorrect address, the Plaintiff wasIpermitted to effect substituted service by publication of summons in daily
newspaper and accordingly, summons were published in the newspaper on 11-7-1974 giving the date of hearing as 13-7-
1974. Thereafter, the Defendant was proceeded ex parte on 29-8-1974.
Shri D.R. Sharma, an advocate was appointed as guardian ad litem for minor Defendant No. 2. The Plaintiff was
permitted to amend the plaint and delete the name of minor Defendant No. 2 from the array of the Defendants on 5-9-
1974. After the amendment, no fresh summons were issued to the Defendant who was proceeded ex parte and on the
same day, i.e. 5-9-1974, ex parte evidence was recorded and ex parte decree was passed on 7-10-1974 and the same
was put in execution. The house which was agreed to be sold by the Defendant was attached on 25th October, 1976 and
sold in auction to Ram Prasad Yadav, who was also put in possession of the house on 12-3.4977.
3. The Defendant Bhola Nath through his next friend Smt. Munni Bai, filed an application (Annexure-P/3) on 2-1-1978
for setting aside ex parte decree on the ground that the Defendant was of unsound mind 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 application is filed within 30 days from
the date of knowledge of the ex parte decree.
During pendency of the application, the Defendant died on 5-1-1984 and his legal representatives were brought on
record. The Plaintiff/decree-holder also died and his legal representatives were brought on record on 8-10-1995.
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 14-2-1976 and 14-7-1976 were received unserved with an endorsement that judgment
debtor is not sane since last four years, recorded a categorical finding that the Defendant became insane completely since
1972 and his insanity was extreme, he was sent to Ranchi for treatment in the year 1972-73 and accordingly, set aside
the ex parte decree. The revision against the order of trial Court was further dismissed.
5. During the course of the argument, apart from other arguments, an objection was raised against the maintainability
of the application under Order 9, Rule 13 of CPC before the trial court on the ground that the ex parte decree is passed
against a lunatic or a minor without appointing a next friend, such person has to institute a suit and the application under
Order 9, Rule 13, CPC is not maintainable as in such a case, such Defendant is not considered to be a party to the suit.
6. Learned single Judge, after referring to numerous conflicting judgments on the issue delivered by different High
Courts, observed that the question raised by Petitioner is of general importance and of day-to-day occurrence and the
same deserves to be authoritatively decided and accordingly, referred the matter for authoritative decision by proper
Bench and consequently the matter has been referred to Division Bench. It has been further observed that the trial
Court has allowed the application for setting aside the ex parte decree by recording a categorical finding that at the time
of institution 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 nullity. The revision preferred
against 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 guardian is maintainable?
8. In the matter of Seth Paramanand and Anr. v. Lakhmichand reported in AIR 1922 Nag 249 (2), it was held by
learned single Judge that minor's application for setting aside ex parte decree against him under Order 9, Rule 13, CPC is
not maintainable. It has been observed that a minor who is not represented in a suit by a properly appointed guardian is
not a party to the suit in the proper sense of the term and proceedings in the suit cannot bind him.
9. The Division Bench of Allahabad High Court in the matter of Moti Chand Vs. Balram Das, , took a countrary view
and held that the Court can set aside an ex parte decree on application 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 negligent and the minor
cannot be forced to file fresh suit.
This issue was again considered by the Division Bench of Travancore-Cochin High Court in the matter of
Kochunarayani Amma Nalini v. Velu Menon Govinda Menon reported in AIR 1965 TC 166 wherein, it was held that one
of the remedies open' to a minor against whom a decree is passed ex parte as a result of the gross negligence on the part
of the guardian ad litem in the conduct of the suit is to apply under Order 9, Rule 13, CPC for setting aside the ex parte
decree. However, learned single Judge of the High Court of Madhya Bharat Indore Bench in the matter of Gendalal v.
Sitabai Bhagwat reported in AIR 1967 MB 10 held that ex parte decree against minor or persons of unsound mind not
properly represented cannot apply under Order 9, Rule 13, CPC to set aside ex parte decree as a person of unsound
mind who is not represented according to law cannot be deemed to be party to proceedings.
10. Similar view has been taken by learned single Judge of the Madhya Pradesh High Court in the matter of Vijay
Kumar v. Madhavrao reported in 1964 JLJ 388 . In the matter of Ram Chandra Arya Vs. Man Singh and Another, , a
suit against lunatic for possession of a house was decreed and in execution of that decree the house was sold and the sale
certificate was issued. However, the Defendant continued to live in the suit house. The Defendant died leaving no heir
and the possession of the property was taken by the servants of the Maharaja as the Defendant was a subject of the
Maharaja. A suit was filed by the son of the earlier decree holder for possession of the house. However, the same was
finally dismissed by the High Court on the ground that the decree was passed against a lunatic and as such nullity and
therefore, the sale held in execution of that decree was void.
11. In the matter of Girja Devi and Anr. v. Indranath Saxena and Ors., reported in 1982 JLJ 51: (AIR 1982 (MP) 83
also, learned single Judge held that where a suit is filed 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 appointing the guardian.
Application under Order 9, Rule 13, CPC on behalf of the minor was allowed and the decree was set aside.
However, learned single Judge of the Gauhati High Court in the matter of Budhai Nepal Chandra Lalit Mohan Saha
Firm and Anr. v. Sudhangshu Ranjan Dev and Ors., reported in AIR 1976 Gau 7 held that application under Order 9,
Rule 13, CPC for setting aside ex parte decree by a minor who was not represented by a guardian- is not maintainable
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and it has been observed that there was no necessity to set aside the decree so far as the minor was concerned. Similar

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view has been taken by Patna High Court in the matter of Rambadan Rai and Ors. v. Paltan Paswan and Ors. reported in

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AIR 1977 Pat 1, wherein it has been held that a decree against minor Defendant without properly represented in a suit is
not binding upon such minor. Such a decree being a nullity and not binding upon him is not required to be set aside.
However, Division Bench of Patna High Court in the wmatter of Md. Hasan and Others Vs. Md. Abbas and Others, held
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that application under Order 9, Rule 13, CPC provides a proper remedy even to a minor in a case where notices have not
been properly served or where a minor was prevented by any sufficient cause from appearing in the suit. It has been
further observed that there may be another iremedy
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Code cannot be said to be barred in such circumstances.
to him, but the remedy under Order 9, Rule 13 of the

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12. We have referred to various judgments of the different High Courts on this issue. There is a consensus of opinion
that a decree against a minor or a person of unsound mind without impleading such person through a duly appointed
legal guardian is nullity. However, there is a conflict in the opinion about the remedies against such decrees available to
the Defendants.
13. We are of the considered opinion that where an ex parte decree is procured against a lunatic by effecting summons
of the suit through substituted service, there is no bar to such Defendant to raise objection in the execution proceedings
or to apply for setting aside the ex parte decree on the ground of improper and invalid 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 Code
cannot be said to be barred in such circumstances.
14. In the matter of Ram Chandra Arya Vs. Man Singh and Another, the Supreme Court held that a decree against a
person of unsound mind is nullity. Subsequent suit for recovery of the possession of the suit property against others who
obtained the possession from the judgment debtor can be resisted by the persons in occupation on the ground that a
decree against person of unsound mind was nullity and such person of unsound mind or persons claiming through him
cannot be directed to file separate proceeding for declaring the earlier decree as nullity under Order 21, Rules 89 and 90
of Code of Civil Procedure.
15. On the basis of the aforesaid discussions and following decisions rendered in Kochunarayani Amma Nalini v. Velu
Menon Govinda Menon, (AIR 1955 Trav. Co 166) (supra), Girja Devi and Anr. v. Indranath Saxena and Ors., (AIR 1982
MP 83 (supra) and Md. Hasan and Others Vs. Md. Abbas and Others, , we answer the question referred to us by learned
single Judge in the affirmative and we hold that the application under Order 9, Rule 13 of 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
guardian is maintainable.
16. The trial Court has recorded a categorical finding 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 summons were not
served and an ex parte decree has been procured without appointment of guardian and the same is nullity and the above
finding has been further confirmed in the revision by the Petitioner.
17. We are of the opinion that there is no perversity in the above finding of fact recorded by the Courts below and we
find no substance in this petition and we accordingly dismiss the same.
Final Result : Dismissed