Failure to appoint guardian ipso facto will result in prejudice to the minor: SC

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K P Natarajan and others V. Muthalammal and others

Special Leave Petition (C) No. 2492 of 2021 decided on 16 July 2021

BENCH: V Ramasubramanian, Indira Banerjee. JJ

FACTS- The recent petition is filed by the petitioner against the High Court judgment at the judicature of Madras, which had set aside the ex-parte decree passed against a minor on the ground that he was not represented by a guardian appointed in terms of procedure contemplated under Order XXXII, Rule 3 of the Code of Civil Procedure The High Court was dealing with a revision petition filed under Section 115 CPC against the refusal of the trial court to set-aside the ex-parte decree passed in a suit seeking specific performance of a sale agreement. The trial court dismissed the application to set aside the ex-parte decree on the ground of unexplained delay of 862 days in preferring the application. One of the defendants in the suit was a minor. While considering the revision, the High Court had summoned the records to ascertain if the guardian was duly appointed as per procedure. On finding that there was no proper appointment of guardian, the high Court set aside the ex-parte decree as a nullity, without going into the question of adequacy of reasons for delay.


1.      Should not High Court to have set aside an exparte decree, in a revision petition arising out of an application under section 5 of the Limitation Act, 1963?

Held- The Supreme court held that the powers of High Court under Article 227 are wider in nature and when the High Court finds that the trial courts have not taken care of the interest of the minor who was a party to the proceeding, by following the procedure prescribed by law, the High court cannot shut its eyes on the grounds of technicalities, likewise mentioned under the provision (section 5) of the Limitation Act. In furtherance Supreme Court observed that the court cannot be negligent even if the party was negligent and the court has to ensure that proper procedure was followed. The manner in which the trial court disposed of the application under Order XXXII, Rule 3, is without doubt, improper and cannot at all be sustained, especially in the teeth of the Madras Amendment.


2.      Could not High Court have set aside the decree invoking Article 227 while hearing a revision petition under section 115 of Civil Procedure Code?

Held- The Supreme Court refused to accept the argument that the High Court could not have set aside the decree invoking Article 227 while hearing a revision application under section 115, CPC. The judgment states “It is too well settled that the powers of the High Court under Article 227 are in addition to and wider than the powers under section 115 of the Code. In Surya Devi Rai vs. Ram Chander Rai and others, this court went as far as to hold that even certiorari under Article 226 can be issued for correcting gross errors of jurisdiction of a subordinate Court. But the correctness of the said view in so far as it related to Article 226, was doubted by another Bench, which resulted in a reference to a three member bench. In Radhe shyam and others vs. Chhabi Nath and others, the three member bench even while overruling the judgment given in Surya Devi Rai on the question of jurisdiction under Article 226, pointed out that the jurisdiction under Article 227 is distinguishable. Therefore, we do not agree with the contention that the High Court committed an error of jurisdiction in invoking Article 227 and setting aside the exparte decree. ”

The court also held that the failure to appoint guardian ipso facto will result in prejudice to the minor and it need not be specially established. Further, the Supreme Court agreed with the High Court’s view that the decree as a whole required to be set aside and not merely against the minor defendant. Honorable Court says “we find no illegality in the order of the High Court warranting our interference under Article 136. Hence, this Special Leave Petition is dismissed.”


CASES REFERRED: Radhe shyam and others vs. Chhabi Nath and others, (2015) 5 SCC 423; Surya Devi Rai vs. Ram Chander Rai and others, 2003 (6) SCC 675

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