Oriental Bank of Commerce Vs. M.K. Gupta and Co. (P) Ltd. and ors. - Court Judgment

Excerpt:
the case dealt with the non-compliance with the order 32 rules 3 and 4 of the civil procedure code, 1908, where it was found that no guardian was appointed for the minor - it was observed that the minor was represented through her mother, although, no written consent of the mother to act as guardian was obtained - hence, it was held that under this situation the decree passed against the minor was a nullity - - on account of failure to publish the sale proclamation the objectors have suffered substantially as there was no bidder. the objectors have learnt later on that the so called bidders were the procured and hired henchmen and puppets of the auction purchaser who bad gathered there at the instance of the auction purchaser. 354 of 1939 was instituted as well as when the house was sold in execution of the decree passed in that suit. it is now a well settled principle that, if a decree is passed against a minor without appointment of a guardian, the decree is a nullity and is void and not merely voidable. where, however, a defendant in a suit is a minor and is effectively represented by a proper person as guardian for the suit then a mere defect in following the rule regarding appointment of guardian, in the absence of any prejudice having been caused, will not bo fatal to the proceedings. if, however, by the use of the word 'mandatory'the learned judges deciding the said cases meant that any nun-compliance with the provisions of rule 3 of order 32 of the code of civil procedure will render the proceedings against a defendant who is a minor to be without jurisdiction and to be null and void, irrespective of the fact whether the minor was effectively represented and the non-compliance or irregularity did not cause any prejudice, then with very great respect such a view would be difficult to sustain. if a minor is effectively represented mere non-compliance with any of the provisions of rule 3 of order 32 which does not cause prejudice will not render the proceedings to be either without jurisdiction or to be null and void. even otherwise i find from the record that the minor was not effectively represented by her mother. in that case the minor were effectively represented by their father. such persons shall be deemed to be unwilling to act as guardian ad litem, if, after service of notice,they fail to appear on the date fixed. the proclamation of sale was affixed at the site as well as on the high court premises and tees hazari courts.c.l. chaudhry, j. (1) these objections have been filed on behalf of the judgment debtors under order 21, rule 90 read with sees. 47. 151 cpc for setting aside the sale. smt. malti gupta, judgment debtor no. 3 and kumari bhavna (minor) judgment debtor no. 5 have stated in their objection petition (which is the subject matter of e.a. 137/1990) that smt. malti gupta is the mother and natural guardian of the judgment debtor no. 5, kumaribhavna, who is a minor, the mother is acting as next friend for the minor and the interest of the mother is not adverse to that of the minor. the property bearing plot no. 4, block c, community centre, janakpuri, new delhi is owned by the objectors being the legal representatives of the deceased shri m.k. gupta. (2) admittedly the objector, judgment debtor no. 5 in the suit is a minor and she was not duly represented either in the case or in the execution proceedings and thus the decree passed against the minor defendant without having guardian ad litem appointed is a nullity and void. consequently the sale of the property wherein the objector owns share and has interest is alsovoid. (3) it is further stated that the provisions contained in order 32,rule 3 of the code of civil procedure are mandatory. no application for appointment of her guardian was made in the suit and no guardian wasappointed. even otherwise she was not properly represented and thereforee,the decree against her was a nullity and the decree can not be executed against her. even in the execution proceedings no guardian was appointed for the minor. the objectors were not served with the notice of sale proclamation under order 21 rule 66 cpc. the decree holder has caused irregularity and fraud which have caused substantial injury to the objectors. the property was grossly under-valued by the decree holder. the proclamation was neither published or affixed on the spot or any conspicuous portion of the property which is the land and at other places as per order dated9.2.1990. there was omission to have the drum beaten at the time of proclamation of sale as required under order 21 rule 54 cpc. on account of failure to publish the sale proclamation the objectors have suffered substantially as there was no bidder. the persons from the locality did not know about the sale which shows that no action had in fact taken place at the spot.order of beat of drum immediately before the auction could not attract prospective bidders for lack of sufficient time and publicity to arrange for huge amount payable at the strike of the hammer. no passerby or the neighbor could even imagine to make arrangements for the bid money at that short interval and this material irregularity has caused substantial injury to the objectors. the objectors have learnt later on that the so called bidders were the procured and hired henchmen and puppets of the auction purchaser who bad gathered there at the instance of the auction purchaser. the alleged bidding proceedings were conducted in the office of the court auctioneer in hazari courts premises.to the same effect are the objections filed on behalf of judgment debtors no. 2 & 4. (4) the objections are contested on behalf of the decree holder. the objections are stated to be hopelessly barred by time and these have been filed only to delay the proceedings. the minor was represented in the main suit by the same guardian who has now filed the present petition. the property is owned by all the judgment debtors. it was denied that the minor was not duly represented either in the case or in the execution proceedings. the interest of the minor had been adequately safeguarded by her mother and natural guardian in the suit. the sale is not void ab initio as alleged. the appointment of guardian ad litem was not necessary as alleged. the mother who has been safeguarding the interest of the minor in the main suit continues to be her guardian even in the execution petition. it is incorrect that the objectors were not served with the notice of the sale proclamation or the warrants of attachment as alleged. no material facts were suppressed as -alleged. it is incorrect that the value of the property is not less than.rs. 25 lacs. it is incorrect that the proclamation was not affixed on the spot any conspicuous portion of the property or on other places as per orderdated 9.2.1990 of this court. the other allegations were also denied.on the pleadings of the parties the followings issues were framed : (1)whether the decree passed against the minor defendant, kumaribhavna without appointment of a guardian is a nullity ?(2) whether there is any material irregularity or fraud in publishing or conducting the sale if so, its effect ?(3) whether the sale can be set aside at the instance of the judgment debtor without compliance of order 21, rule 89 ?(4) whether the objections filed by j.ds. 2 to 4 are not maintainable in view of their earlier objections filed and dismissed ?(5) relief. i have heard the learned counsel for the parties at length and have bestowed my thoughtful consideration to the matter involved.issue no. 1 (5) the plaintiff bank filed a suit for recovery of rs. 5,14,902.09against the defendants. defendant no. 5. kumari bhavna at the time of filing of the suit was minor. she was described as defendant no. 5, kumaribhavna (minor), daughter of shri m.k. gupta, r/oa-373, defense colony,new delhi, through mrs. malti gupta, natural guardian (being mother of the minor). it may be stated that smt. malti gupta was also defendantno. 3 in the suit. the summons in the name of the minor kumari bhavna were issued through mrs. malti gupta, natural guardian being the mother of the minor. mrs. malti gupta received the summons on 11.12.1983 with the endorsement 'received notice with copy for kumari bhavna-malti gupta'.mr. r.k. sharma filed a power of attorney on behalf of defendant no. j.m/s. m.k. gupta and company pvt. ltd., defendant no, 3 malti gupta and defendant no. 5 kumari bhavna (minor). the counsel appeared for defendants 1, 3 &5 on 9.1.1984 and defendants were given time to file the written statement. again on 14.2.1984 r.k. sharma appeared for defendants 1, 3 & 5 but no written statement was filed. defendants were given last opportunity to file the written statement within 6 weeks. this was also not done. despite two other opportunities no written statement was filed on behalf of defendants 1. 3 & 5. the matter was listed before the court on27.9.1984 for passing appropriate orders against defendants 1,3 &5. mr.r.n. chawla sought further time for filing the written statement on behalf of defendants 1, 3 & 5 on the ground that the litigation was going on between the parties. the court found that there was no ground for allowing any further opportunity to the defendants l,3& 5 for filing the written statement and by invoking the ^provisions of order, 8 rule 10 civil procedure code a decree for recovery of rs. 5,14,902 09 was passed against the defendants l,3& 5 on27.9.1984. similarly decree against defendants 2 & 4 for not filing the written statement was also passed on the same date. thereafter the decreeholder filed an application for execution of the decree being executionno. 146/1985. in the execution application also the judgment debtor no. 5was shown to be kumari bhavna (minor) through judgment debtor no. 3,being the mother of the minor. the decree was sought to be executed by attachment and sale of plot no. 4, block c, community centre, janakpuri,new delhi, belonging to judgment debtors. on 19. i 1.1985, warrants of attachment of the property were issued by this court. the warrants of attachment were served by beat of drums and affixation. the judgmentdebtor no. 1 was served with the warrant of attachment while the service on judgment debtors no. 2 to 5 was effected by means of substituted service, by citation in the statesman. the contention of-mr. chugh appearing on behalf of kumari bhavna is that the decree obtained by the decree holder is without jurisdiction and is a nullity. no guardian of the minor was appointed in the suit and thereafter in the execution proceedings also there was no appointment of the guardian and the sale of the property is liable to be set aside. in support of his contention he relied upon the provisions of order 32, rule 3cpc and contended that where the defendant is a minor, the court shall appoint a proper person as a guardian of such minor. 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. 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.order 32, rule 4 civil procedure code also provides that no person shall without his consent in writing be appointed guardian for the minor.mr. chugh further contended that no application was filed by the plaintiff for appointment of the guardian of the minor. there is no formal order passed by the court appointing anybody as the guardian of the minor.even otherwise there has been no proper representation on behalf of theminor. no written statement was filed on behalf of the minor despite four opportunities given by the court, and the court passed the decree by invoking the provisions of order 8, rule 10 cpc. in support of his contentionmr. chugh has relied upon a judgment of the supreme court in the case of ram chander arya v. man singh & another, reported as 1968 sc 954, wherein it was observed: 'as has been mentioned above, the suit was dismissed by the trial court and that decision has been upheld by the first and second appellate courts on the ground that the decree against ram lal was a nullity and the sale held in execution of that decree was thereforee, void. it appears from the judgment of the high court that, in that court, no attempt was made on behalf of the appellant to contend that the decree which was obtained against ram lal and in execution of which the house was sold was not null and void and was not a nullity. on the face of it, the decree was passed in contravention of the provisions of order 32, rule 15 of the code of civil procedure. it has been found as a fact that ram lal was insane when suit no. 354 of 1939 was instituted as well as when the house was sold in execution of the decree passed in that suit. it is now a well settled principle that, if a decree is passed against a minor without appointment of a guardian, the decree is a nullity and is void and not merely voidable. this principle becomes applicable to the case of a lunatic in view of rule 15 of order 32 of the code of civil procedure so that the decree obtained against ramlal was a decree which has to be treated as without jurisdiction andvoid. in these circumstances, the sale held in execution of that decree must also be held to be void.' the other judgment on which reliance is placed is of this court in the case of edwin stephen v. sodanand, reported as 1981 rlr 262 wherein this court took the view that if a minor is not duly represented and the case isdecreed, the decree is nullity. its validity can be questioned under section 47 civil procedure code in execution proceedings. in this case the court also took the view that if no guardian of the minor as required under order 32 rule 3 civil procedure code is appointed the eviction order was a nullity and could not be executed in law. (6) on the other hand mr. mahindroo has relied upon a division bench judgment of this court delivered in the case of mohd. yusuf and others v. rafiquddin siddiqui, reported as 2nd 1974 (1) delhi page 825,wherein it was observed as under : 'in our opinion the provisions of rule 3 of order 32 of the code of civil procedure are directory in character. this does not mean that it is open to a court to completely ignore its provisions.where, however, a defendant in a suit is a minor and is effectively represented by a proper person as guardian for the suit then a mere defect in following the rule regarding appointment of guardian, in the absence of any prejudice having been caused, will not bo fatal to the proceedings. it seems to us that the patna high court cases relied upon by the learned counsel for the appellants were decided on their own facts. if, however, by the use of the word 'mandatory'the learned judges deciding the said cases meant that any nun-compliance with the provisions of rule 3 of order 32 of the code of civil procedure will render the proceedings against a defendant who is a minor to be without jurisdiction and to be null and void, irrespective of the fact whether the minor was effectively represented and the non-compliance or irregularity did not cause any prejudice, then with very great respect such a view would be difficult to sustain.whether or not the proceedings against a minor defendant can be regarded to be without jurisdiction and to be a nullity will depend upon the facts of each case. if a minor is effectively represented mere non-compliance with any of the provisions of rule 3 of order 32 which does not cause prejudice will not render the proceedings to be either without jurisdiction or to be null and void.' (7) i have considered the relevant. contentions of the parties. in my opinion the contention of mr. chugh has substantial force and should prevail.the supreme court in the case of ram chander (supra) has held that a decree passed against the minor without appointment of a guardian is void and not merely voidable. similar is the view taken in edwin stephen's case(supra). (8) in this case no application for the appointment of the guardian of the minor was filed by the plaintiff, as contemplated under order 32, rule 3cpc. only the summons were issued in the name of the minor through hermother. the consent of the mother as contemplated under order, 32 rule 4was also not taken. as a result thereof there is no formal order by this court appointing a guardian ad litem of the minor. even otherwise i find from the record that the minor was not effectively represented by her mother.no written statement on behalf of the minor was filed despite five opportunities having been granted by this court. (9) the case relied upon by mr. mahindroo is not applicable to the facts and circumstances of this case. in that case the minor were effectively represented by their father. in those circumstances the court took the view that though there was no formal order appointing the father as guardian of the minor yet it did not in any way cause any prejudice to the minors. but the facts of the case in hand are quite different. firstly, there was no appointment of the guardian by the court and secondly there was no effective representation of the minor. mr. mahindroo placed reliance on the original side rules of this court in support of his contention that no formal order was necessary. rule i of chapter xiv of delhi high court original side rules reads as follows : 1.list of all likely guardian ad litem to be filed :(a) in suits where the defendant is a minor, the plaintiff shall file with the plaint a list of relatives and all other persons with correct addresses, who prima-facie are most likely to be capable of acting as guardian for the minor defendant in the suit.(b) a notice shall issue simultaneously to all such persons, single process fee being levied. such persons shall be deemed to be unwilling to act as guardian ad litem, if, after service of notice,they fail to appear on the date fixed.(e) if the persons specified in the list filed under sub-rule (1) are unwilling to act as guardian ad litem, the registrar may, if there be more defendants than one and their interests are not adverse to the minor, appoint one of such defendants who maybe willing to act as guardian ad litem; or may appoint forthwith one of the officers of the court as such guardian ad litem.' there was no compliance of the above rule. no list of the relatives was filed along with the suit and no notice was issued to the relatives. in my opinion mr. mahindroo cannot derive any assistance from these rules. (10) in view of the above discussion i have no hesitation in holding that the decree obtained against defendant no. 5 was nullity and without jurisdiction. it is the case of the decree holder that all the judgment debtors are owners of the property i.e. 4, community centre, janakpuri, new delhi which has been sold in execution of the decree. admittedly the minor had an interest in the property. the property could not be sold in execution ofa decree which was a nullity and without jurisdiction against the minor.consequently, the sale of the property-plot no. 4, block c. communitycentre. janakpuri, new delhi, conducted under the orders of this court on16.4.1990 is set aside. this issue is decided accordingly. (11) it is contended on behalf of the judgment debtor that there was material irregularity and fraud in publishing or conducting the sale. it is stated that no notice for settling of the proclamation was issued to the judgment debtors. no doubt order 21, rule 66 provides that the sale proclamation shall be drawn up after notice to the judgment debtors and decreeholder. but there is a proviso that where notice of settling the terms of the proclamation has been given to the judgment debtor by means of an order under rule 54 it shall not be necessary to give a notice of this rule to the judgment debtor unless the court otherwise directs. i have seen the warrants of attachment which were served on defendant no. 1 personally and by substituted means on the judgment debtors no. 2 to 5. in the warrants of attachment a direction was given to the judgment debtor to appear in the court and to take the notice of the date fixed for settling the terms of proclamation of sale. in view of this, no further notice was necessary to be given to the judgment debtors. the other objection is that the proclamation of sale was not affixed at the place mentioned in the order of this court. i have perused the record. the proclamation of sale was affixed at the site as well as on the high court premises and tees hazari courts. munadi was also done at the site on 9.3.1990 at 4 p.m. the other objection is that there was no beat of drums at the site. this objection also seems to be withoutsubstance. i have seen the receipt issued by the drum beater where he charged rs. 25.00 turn drum beating at the site between 8 a.m. to i p.m. the report of the court auctioneer is filed which also states that the munadi had been effected by the drum beater and the sale was conducted between10 a.m. to 10.30 a.m. from the perusal of the bid sheet i find that there were 25 bids starting from rs. 3.53 lacs and ending with rs. 15,00,536.00. i find no force in these objections and these are rejected.issue no. 3 (12) in my opinion the provisions of order, 21 rule 89 civil procedure code are not attracted in this case. rule 89 of order 21 provides as under : rule89. application to set aside sale deposit.(1) where immovable property has been sold in execution of a decree, [any person claiming an interest in the property sold at the time of the sale or at the time of making the application,or acting for or in the interest of such person], may apply to have(a) for payment to the purchaser, a sum equal to five per cent of the purchase money, and(b) for payment to the decree holder, the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered, less any amount which may, since the date of such proclamation of sale, have been received by the decree-holder.(2) where a person applies under rule 90 to set aside the sale of his immovable property he shall not, unless he withdraws hisapplication, be entitled to make or prosecute an application under this rule.(3) nothing in this rule shall relieve the judgment debtor, from any liability he may be under in respect of costs and interest not covered by the proclamation of sale. (13) under this rule if any person claiming interest in the property wants to have the sale set aside he can do so by depositing the amount specified in the sale in court. the judgment debtors have not invoked the provisions of order 21, rule 89 civil procedure code but they filed objections u/order 21rule 90 civil procedure code for setting aside the sale on the ground of irregularity and fraud in publishing and conducting the sale.issue no. 4 (14) the judgment debtors 2 to 4 filed objections to the attachment of the property. those objections were dismissed. the objections now filed on behalf of judgment debtors nos. 2 & 4 relate to the sale of the property. in view of this the issue is decided against the decree bolder.relief (15) in view of my above discussions i set aside the sale in respect of the property no. 4, block c, community centre, janakpuri, new delhi conducted on 16.4.1990. as the sale has been set aside, the auction purchaser is entitled to an order for repayment of purchase money which has been deposited by him in this court. accordingly the amount deposited by the auction purchaser may be refunded. however, in the facts and circumstances of the case i leave the parties to bear their own costs. (16) list this case before the registrar on for payment of he amount deposited by the auction purchaser to him.