Rajinder Kumar vs Sanatan Dharam Mahabir Dal

T.H.B. Chalapathi, J.—This revision petition is filed against the order of the Additional Civil Judge (Junior Division) Bathinda, dated 3.10.1997, on an objection partition u/s 47 read with Section 151 of the CPC filed by the petitioner to the execution of the decree.

The first respondent, which is a trust filed a suit for recovery of possession of shops. The said suit was decreed by the trial Court. Against the said decree, the defendants filed an appeal to the Additional District Judge, Bathinda, which was dismissed. Against the decree and judgment of the Additional District Judge, a second appeal was also filed in this Court, which was also dismissed. The defendants carried the matter to the Apex Court. The Apex Court also confirmed the decree. To execute the said decree for possession, the petitioner (decree-holder) filed an application for execution of the same, out of which the present revision petition arises. The petitioner, who is one of the judgment-debtors, is objecting to the execution of the decree on the ground that he was a minor at the time when the suit was instituted in January 1972 and he was not properly represented through a proper guardian in the proceedings. Therefore, the decree is not binding on him and cannot be executed.

There is no dispute of the fact that the petitioner was a minor when the suit was filed. The suit was filed against his brother, mother, himself and his sisters. The mother and the brother of the petitioner refused to receive the notice on behalf of the petitioner. Therefore, an application was filed for appointment of a Court-guardian and the Court appointed a Court-guardian for the petitioner. The Court-guardian engaged Shri Jagmohan Lal Syal, Advocate, who was also appearing for the mother and the brother of the petitioner, who also contested the suit The Advocate appearing on behalf of the Court-Guardian, representing the mother of the petitioner, adopted the written statement filed by other defendants. After contest, the suit was decreed. The brother of the petitioner initially filed an appeal before the Additional District Judge, Bathinda. In that appeal, his mother, brother and sisters have been impleaded as respondents 2 to 8. Respondents 2 to 8 including the present petitioner moved an application on 17.7.1976 before the learned Additional District Judge to transpose them as appellants. On that application the learned District Judge passed the following order: -

"Respondent No. 2 to 8 who are defendants along with the appellant in the lower Court and are along with the appellants the heirs of deceased On Parkash Garg, have moved an application for being transposed as appellants. Shri Manmohan Lal Gupta, Counsel for the plaintiff-respondent No. 1 has made a statement that he did not oppose the application; the names of these respondents namely 2 to 8 be removed from the list of respondents and be transposed as appellants."

The learned District Judge dismissed the appeal. A regular second appeal was filed in this Court by all the defendants including the present petitioner Rajinder Kumar, who was the third appellant. The appeal was heard and decided on May 15, 1992.

There is also no dispute of the fact that all the respondents are living together. Admittedly, the petitioner was born on 7.8.1963 as evidenced by the certificate of date of birth produced by the petitioner himself, which is marked as Exhibit 0.1 Therefore, by the (time the) appeal in this court was decided on May 15,1992, the petitioner already became a major. There is also no dispute of the fact that against the judgment of this Court in R.S.A. No. 933 of 1979, dated 15.5.1992, an appeal was also filed before the Apex Court. Either in the Court or in the Apex Court, no objection has been taken by the petitioner that the decree passed against him/when he is a minor, is not validly passed, on the ground that he was not properly represented in the suit. When the appeal was pending in this court, the petitioner became major. When the appeal was decided in this Court in the year 1992, the petitioner was aged about 29 years. It is not as though the petitioner was not aware of the pendency of the appeal in this court. But the petitioner did not choose to get himself declared as major. When admittedly the petitioner had knowledge of the proceedings for eviction, it is the duty of the petitioner to get himself declared as major. When a defendant becomes a major during the pendency of the suit, he can himself come on record as a major or inform the Court that he has attained majority. If he does not move in the matter, he may be deemed to have adopted the proceedings and will be bound by the result of the litigation. It has been held in Lanka Sanyasi v. Lanka Yerran Naidu and Ors. AIR 1928 Mad 294, as follows:-

"No provisions have been made in the. Civil Procedure Code, in respect of a minor defendant attaining majority. Therefore, the minor defendant who comes of age may, if he thinks fit, come on the record and conduct the defence himself. If, however, he does not do so and allows the case to proceed as though he was still a minor without bringing to the notice of the court, the fact of his having attained majority, then he must be deemed to have elected to abide by the judgment or adjudication by the Court with respect to the matter in controversy on the basis of the suit at the time."

The same view has also been taken in Savithri Vs. Vasudevan Nambudiri, and also in V.K. Murugappa Mudaliar Vs. P.M. Desappa Nayanim Varu and Others, and N.M. Rayulu Iyer Nagasami Iyer and Co. through one of its Partners N.M.R. Venkatakrishnba Iyer v. Chockanarayanan Chettiar AIR 1954 Mad 237. It is also pertinent to note that after he became major, an appeal was also filed in the Apex Court. The appeal was also on behalf of the petitioner. The petitioner, therefore, cannot contend that the decree was against him during his minority and is not binding on him on the ground that he was not property represented. The decree attained finality long after he attained the majority and he never objected, neither in the appeal before this court nor in the Supreme Court. The appeals are in continuation of the suit. The petitioner has not taken any objection that the decree passed against him during his majority in not binding against him and, therefore, it is liable to be set aside.

Admittedly, the suit property was taken on lease by the father of the petitioner. On his death, all the defendants became entitled to the tenancy rights of his father. There is also no dispute of the fact that the petitioner and other members form Hindu Joint Family along with his father. After the death of his father, the elder brother of the petitioner became the Manager of the family. When the suit was filed against the Manager of the Hindu Joint Family, it is binding on the minor members of the family as well. In this context reference may be made to the decision of Rajasthan High Court in Mahabir Prasad Vs. Sawai Chand and Others, , and also to the decision in C.K.S. Krishnamurthi and Ors. v. Chidambram Chettiar and Ors. AIR 1946 Mad 243.

I am also of the opinion that it is not a case where there is no representation of the minor at all. If a minor defendant is no represented at all in the suit, the decree as against him may be said to be a nullity but that must be distinguished from cases where the Court had appointed a guardian ad-litem on an application filed by the defendant. Though there is some irregularity in appointing the guardian, it does not amount to no representation at all. The minor cannot avoid the decree unless it is shown that the defect in procedure has prejudicated him.

The learned counsel for the petitioner contended that the provisions of Rule 3 of the Order 32 of the CPC as amended in the Punjab have not been followed and therefore, the decree is a nullity. I am not able to agree with this contention of the learned counsel for the petitioner. In this connection, it is useful to refer to the Full Bench decision of this Court in Amrik Singh and Another Vs. Karnail Singh and Others, , wherein it has been observed as follows:-

"The object of Order 32 is to see that no decrees are passed against minors where they are not effectively represented. I have deliberately used the words ''effectively represented'' in contradistinction to the ''representation'' contemplated by Order 32 Rule 3. If a minor is represented by a guardian ad-litem and the interests of the other major defendants are identical with him and those defendants are effectively prosecuting the litigation it can hardly be said that a minor is not effectively represented. Too much insistence on technical provisions of a procedural law can at times lead to absurd results and cause injustice to the parties."

On the facts of the present revision petition, the interest of the petitioner is identical with that of the other defendants and the suit has been contested on every conceivable ground and the matter was taken upto the Apex Court by the defendants unsuccessfully. The suit was filed in the year 1972. The decree became final only after a period of two decades. When the plaintiff is seeking to execute the said decree, the petitioner filed this application to further delay the execution. The plaintiff is not able to recover possession of the property for more than two and a half decades. One can understand if the petitioner makes a grievance immediately on attaining the majority but he kept quiet for more than a decade after attaining majority. If he wants to have the decree set aside, he has to necessarily file a suit asserting his rights on attaining majority. It has been held by the Apex Court in Smt. Kameshwari Devi @ Kaleshwari Devi and Ors. v. Smt. Barhani and Ors. J.T. 1997(3) S.C. 403, that if the interest of the estate of the minor is not protected, necessarily the minor on his attaining majority or within 3 years thereafter is entitled to file the suit u/s 7 of the Limitation Act, after cessation of the disability to question the correctness of a decree which is sought to be made binding on him, and in such a case, the limited defence that could be open to him is that either the decree in the earlier suit was obtained by fraud/collusion or by negligence or the part of the Court guardian or that the guardian ad-litem did not safeguard the interest of the estate of the minor. It has also been held by the Apex Court that if the defence was common to all the defendants in earlier suit including that of the minor and the estate of the minor was sufficiently represented by appointing the Court guardian, the decree is binding on the minor.

In view of my foregoing discussion, I do not find any ground warranting interference with the impugned order of the Executive Court. The revision petition, therefore, fails and is accordingly dismissed.