K. P. NATARAJAN & ANR. versus MUTHALAMMAL & ORS.

Citation: [2021] 5 S.C.R. 350 · Decided: 16-07-2021 · Supreme Court of India · Bench: INDIRA BANERJEE · Disposal: Dismissed

cites 1 · see the full citation network in Lexace

Judgment (excerpt)

A
B
C
D
E
F
G
H
350
SUPREME COURT REPORTS
[2021] 5 S.C.R.
   [2021] 5 S.C.R. 350
350
K. P. NATARAJAN & ANR.
v.
MUTHALAMMAL & ORS.
(Special Leave Petition (C) No. 2492 of 2021)
JULY 16, 2021
[INDIRA BANERJEE AND V. RAMASUBRAMANIAN, JJ.]
Code of Civil Procedure, 1908: Or.XXXII, r.3 – Suit for specific
performance filed by the petitioner – Respondents-defendants after
having entered appearance through counsel, remained ex parte –
In the plaint, the third defendant was described as minor represented
by the next friend (minor’s father) – Petitioners had filed along
with the plaint, an application under Or. XXXII, r.3 for appointing
second respondent (minor’s father) as guardian – Petitioner had
also sought alternate relief, a decree for refund of the money paid
with interest in the event of the Court not granting the relief of
specific performance – However, trial court passed ex parte decree
holding petitioner entitled to relief of specific performance – Even
in execution proceedings, respondents were set ex parte and
execution petition was allowed – Thereafter, respondents filed
application for setting aside ex parte order in execution petition –
Meanwhile, petitioners were called upon to deposit non-judicial
stamp papers of Rs.1,98,000/- for execution of sale deed – They
did so and sale deed was executed – It was only thereafter that
respondents filed application for condonation of the delay of 862
days for setting aside the ex-parte decree – This application was
dismissed by trial court – Aggrieved respondents filed revision
petition under s.115 of the Code before High Court – Entertaining
a doubt about appointment of a guardian, High Court summoned
original records – Finding that I.A filed along with the plaint for
the appointment of guardian was not properly dealt with and that
there was no appointment of a guardian for minor as required under
Or.XXXII, r.3, High Court invoked the general power of
superintendence under Art.227 of the Constitution and set aside
ex-parte decree itself, without going into the question of delay and
without examining whether there was sufficient cause for
condonation of delay – In order to ensure that the petitioners/decree
holders are not poorer after a decree (or because of the decree),
A
B
C
D
E
F
G
H
351
High Court put the respondents on condition that they should pay
of Rs.2,50,000/- as cost to petitioners as the petitioners/decree
holders had already deposited stamp papers and got the sale deed
executed – Respondents deposited cost of Rs.2,50,000/- – As a
consequence, trial court took up the suit for trial after framing
issues – Aggrieved petitioner filed instant special leave petition –
Held: No dispute on facts that the respondents were grossly negligent
in defending the suit as well as the execution proceedings – However,
High Court had found, after summoning the records from trial court
that as a matter of fact, trial Court failed to appoint a guardian for
the minor in a manner prescribed by law – An application was in
fact filed by petitioners under Or. XXXII, r.3 – The said application
was closed by trial Court – The manner in which the trial Court
disposed of the application under Or.XXXII, r.3 is improper and
cannot at all be sustained – It is true that High Court was dealing
only with a revision petition arising out of an order dismissing a
petition under s.5 of the Limitation Act, 1963 – But it does not take
away or curtail the jurisdiction of 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 rigorous nature of the Madras amendment to
r.3 of Or.XXXII, is perhaps to be attributed to the wider jurisdiction
that the High Court exercised on its original side, under Clause-17
of the Letters Patent and the parens patriae jurisdiction that a Court
normally exercises while dealing with cases of minors – Therefore,
there is no illegality in 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 Or.XXXII, r.3, even in
the absence of a specific contention being raised by the petitioners
– The contention that in a revision arising out of the dismissal of a
petition under s.5 of the Limitation Act, 1963, the High Court cannot
set aside the ex-parte decree itself, by invoking the power under
Art.227 is 

Excerpt shown. Read the full judgment & AI analysis in Lexace.