Ex-parte Decree Passed Against a Minor, who is not represented by a duly appointed guardian, is Invalid: SC
Madras high court judgment was upheld by the apex court wherein it was also held that ex-parte decree passed against a minor who is not represented by a duly appointed guardian was a nullity.
while considering an appeal which was filed against the High Court order that had aside an ex-parte decree passed against a minor on the ground that he was not represented by a duly appointed guardian as mentioned in a procedure under Order XXXII Rule 3 of CPC a ruling was made by a Bench of Hon’ble Justice Indira Banerjee and Hon’ble Justice V Balasubramanian.
The High Court dealt with a revision petition filed u/s 115 CPC against refusal of the trial court to set aside the ex-parte order in a case seeking specific performance of a sale agreement. As there was a delay of 862 days in applying the court has dismissed the plea and set aside the decree because as we know the one defendant who was in the suit was a minor. Records were summoned by the high court while considering the revision to ascertain if a guardian was appointed as per the procedure. When it was noticed by the court that a guardian was not appointed as per the procedures then the Court set aside the ex-parte order as a nullity.
The order was challenged on the following grounds-
the ex-parte decree in a Revision that arose out of an application u/s 5 of the Limitation should not have been set aside by the high court. As the respondents were grossly negligent so the Hon’ble court was not entitled to invoke equity in favor of respondents. It was argued by the senior counsel R Balasubramanian that the revisional jurisdiction of the high court under article 227 was broad and the Balasubramanian appeared for the respondents. If the senior Counsel Balasubramanian thinks that the injustice has happened with the minor then he cannot shut his eyes that what she had done and also the technicalities. As we know and also according to the apex court too that the court hast not to be negligent if the party is negligent and at the same time the court has to ensure that all the necessary procedures are followed. It was refused by the bench to accept the contention that the High Court couldn’t set aside the decree invoking Article 227 while taking up an application u/s 115 CPC. It was ruled by the hon’ble court that there was no illegality in the high court's order and also the Hon’ble court has dismissed the special leave petition.