SC holds parties can afford to remain negligent, the Court cannot: Failure to appoint a guardian for the defendant as required by Order XXXII Rule 3 CPC renders ex­parte decree as nullity

The SC on July 16, 2021 {K.P. NATARAJAN & ANR. vs MUTHALAMMAL & ORS.} held that while the parties can afford to remain negligent, the Court cannot. It was held that the High Court has found, after summoning the records from the trial Court that as a matter of fact, the trial Court failed to appoint a guardian for the third respondent/minor in a manner prescribed by law. It was held that 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.

It was held by the SC Bench, comprising of Justice Indira Banerjee & Justice V. Ramasubramanian, that the learned Judge summoned the records from the trial Court after entertaining a doubt about the procedure followed by the trial Court in this case and found as a matter of fact that the trial Court failed to appoint a guardian for the third defendant as required by Order XXXII, Rule 3 CPC. It was held that the power of the learned Judge to call for the records and examine the same, in a revision under Section   115(1)   of   the   Code   is   not   and   cannot   be   doubted   or questioned by the petitioners. It was held by the SC that it is true that the learned Judge was dealing   only   with   a   revision   petition   arising   out   of   an Order dismissing a petition under Section 5 of the Limitation Act, 1963. It was however held that but it does not take away or curtail the jurisdiction of the High Court   to   look   into   the   records   with   particular   reference   to   an important rule of procedure, especially when the same relates to something concerning persons under disability.

The facts of the present case before the SC were, a Civil Revision Petition was filed under Section 115 of the Code of Civil Procedure, 1908 (for short “the Code”), challenging an order of the trial Court refusing to condone the delay of 862 days in seeking to set aside an ex­parte decree for specific performance, however the High Court found that the ex­parte decree was a nullity, as it was passed against a minor without the minor being represented by a guardian duly appointed in terms under Order XXXII, Rule 3 of the Code. Therefore, the High Court, exercising its power of superintendence under Article 227 of the Constitution, set aside the ex­parte decree itself on condition that the petitioners before the High Court/defendants pay a sum of Rs. 2,50,000/­- representing the amount already spent by the decree holders in purchasing stamp paper etc. Aggrieved by the said order of the High Court, the decree holders were before the SC in this special leave petition. 

The SC held that the contention that in a revision arising out of the dismissal of a petition under Section 5 of the Limitation Act, 1963, the High Court cannot set aside the ex­parte decree itself, by invoking the power under Article 227, does not appeal to it. It was held that 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. 

It was held by the SC that the action of the High Court in summoning the original records in the suit and finding out whether or not a guardian of a minor defendant was   appointed   properly   in   accordance   with   the   procedure prescribed in Order XXXII, Rule 3, even in the absence of a specific contention being raised by the petitioners, was proper and as per law.

Therefore, the SC found no illegality in the order of the High Court warranting its interference under Article 136. Hence, this Special Leave Petition was dismissed by the SC.