Jagjit Singh and Others vs Harinder Singh and Others

Bakhshish Kaur, J.—This revision is directed against the order dated 27.1. 1999 passed by the Learned Additional Civil Judge (Sr.Div.),

Malout, whereby the execution application filed by the petitioner was dismissed.

The factual matrix of the case is that Jagjit Singh and others had filed a suit for possession of the estate of Rattan Singh against Harinder Singh

and others. Amandeep Singh and Ramandeep Singh, defendants judgment-debtors No,2 and 3 were minor at the time of filing of the suit and they

were sued through their father Sukhdev Singh. It was dismissed by the trial Court but on appeal it was decreed in their favour, Amandeep Singh

had attained majority on 10.1.1998 whereas the appellate Court had passed the decree on 21.2.1998.

Amandeep Singh, judgments-debtor, filed objection petition u/s 47 of the CPC in the execution proceedings taken by the decree holders. It is

averred that the decree is null and void. It is not binding upon him. He along with his brother is in possession of the suit land on the basis of the sale

deed dated 5.9.1988 and the will dated 5.7.1988 executed by Rattan Singh, but his next friend failed to defend the case vigilantly. The decree is

the result of fraud and collusion between the decree holders and, his next friend. The decree was also in violation of the mandatory provisions of

Order 32 Rules 3 and 4 of the Code. Since he had already attained majority before the passing of the decree by the appellate court, therefore, he

should have been given an opportunity to defend the case by himself.

The Executing Court had accepted the objection petition vide impugned order which resulted into dismissal of the execution applicator.

I have heard Mr. Ashok Devgan learned counsel for the petitioners and Mr. S.S. Bhullar, learned counsel for the respondents.

Mr. Devgan, learned counsel for the petitioners contended that the decree in favour of the decree holders is not the result of collusion between

the decree holders and the next friend of Amandeep Singh, judgment-debtor. In fact, initially the suit was dismissed and only in appeal it was

decreed. Regular Second Appeal No. 663 of 1998 was also filed in this Court. It was dismissed on 25.3.1998. The defendants bad also filed SLP

in the Supreme Court and it was disposed of on 3.8.1998. Only after the decision of S.L.P.. Amandeep Singh- objector had filed the objections

that he had attained majority w.e.f. 10.1.1998 and that the decree is illegal, null and void. In fact, after a hot contest up to the Supreme Court, it

cannot be said that the decrees the result of collusion between the decree holders and the next friend of the minors. It is farther contended that the

Executing Court cannot go behind the decree and the same is required to be executed and this is not the stage to declare it as void. In this way, the

Executing Court has erred in dismissing the execution application.

Order 32 Rule 3 of the Code provides for the mandatory requirement on the part of the Court to make a preliminary inquiry and ascertain

thereby the question whether the defendant is a minor or a person of unsound mind or one suffering from mental infirmity rendering him incapable

of protecting his rights. One of the points to be considered by the Court is whether the interests of the proposed guardian are adverse to that of the

minor. The procedure to be followed by the Court for the appointment of guardian under Order 32 Rule 3 of the Code is as under:-

Order 32 Rule 3(1) where the defendant is a minor, the Court, on being satisfied of the fact of his minority, shall appoint a proper person to be

guardian for the suit for such minor.

(2) An order for the appointment of a guardian for the suit may be obtained upon application in the name and on behalf of the minor or by the

plaintiff.

(3) Such application shall be supported by an affidavit verifying the fact that the proposed guardian has no interest in the matters in controversy in

the suit adverse to that of the minor and that he is a fit person to be so appointed.

(4) No order shall be made on any application under this rule except upon notice to any guardian of the minor appointed or declared by an

authority competent in that behalf or where there is no such guardian upon the notice to the father or where there is no father, to the mother, or

where there is no father, mother, to other natural guardian of the minor, or where there is no father, mother or other natural guardian, to the person

in whose care the minor is, and after hearing any objection which may be urged on behalf of any person served with notice under this Sub-rule.

(4-A) The Court may in any case, if it thinks fit, issue notice under Sub-rule (4) to the minor also.

(5) A person appointed under Sub-rule (1) to be guardian for the suit for a minor shall, unless his appointment is terminated by retirement, removal

or death continue as such throughout all proceedings arising out of the suit including proceedings in any appellate or revisional Court and any

proceedings in the execution of a decree.

In the given case in hand, no such application was filed by the plaintiff that ""he person named as guardian has no interest adverse to that of the

minor and that he is a fit person to be so appointed.

In Gurpreet Singh Vs. Chatterbhuj Goel, with reference to non-compliance of the provisions of Order 32 Rule 3 and 4 of the Code, it has been

held by a Division Bench of this Court that non-compliance of the provisions makes the decree void it has been held therein as under:-

The inflexible rule in regard to appointment of guardian to defend suit on behalf of minor is that it is incumbent on the plaintiff suing a minor

defendant to file an application in Court for the appointment of a guardian and the subsequent steps that are to be taken are within the purview of

province of the Court. If an application is not made as provided by Order 32 Rule 3 any guardian who may have acted for the minor, would not be

clothed with the requisite authority to act as such. The consent that can be presumed under Rule 4(3) as amended in Punjab is only if an application

has been made and notice issued to the proposed guardian. The non-compliance with the mandatory provisions of Order 32 Rules 3 and 4 makes

the decree void and it must also presume to have caused prejudice to the minor. Chater Bhuj Goel Vs. Gurpreet Singh, , Reversed. AIR (1903)

Cal. 1021, Rel. on.

On the point of properly watching the interest of the minor, the learned counsel for the respondents contended that the attitude of the guardian

by not watching the interest of the minor is evident from the fact that the scribe of the will, executed by Rattan Singh in favour of Amandeep Singh

and others was not examined, The original power of attorney executed by Rattan Singh in favour of Smt. Gurcharan Kaur was placed on record

nor it was got proved.

Thus, under these circumstances, where there was non-compliance of the provisions of Order 32 Rule 3 and 4, which has been discussed in

detail by the Executing Court, I do not find any patent error requiring this Court to interfere with the same.

Dismissed.