Judgement

BHARGAVA, J.:- This appeal arises out of a suit for possession of a house which, at one time, used to belong to one Ram Lal. On 11th January, 1939, one Ram Das filed suit No. 354 of 1939 against Ram Lal in the Court of Judge, Small Causes, for recovery of a sum of Rs. 144. That suit was later transferred to the Court of the Munsif and an ex parte decree in that suit was passed an 27th March, 1939, after the Court held that Ram Lal had been sufficiently served. In execution of that decree, the house was sold and the sale certificate was issued on 21st January, 1941 in favour of Prabhu Dayal, the father of the appellant in this appeal. Formal delivery of possession was taken and the certificate of delivery of sale is dated 15th May, 1941. Admittedly, Ram Lal continued to live in the house even thereafter and on 19th September, 1945, be died leaving no heir. Ram Lal was a subject of the Maharaja of Jaipur and, on Ram Lal s death servants of the Maharaja took possession of the house on 20th September, 1945.

2. Thereupon, suit No. 552 of 1946 was filed by Prabhu Dayal, the father of the appellant, for possession of the home on 10th July, 1946. The suit was contested on the ground that Ram Lal was a lunatic and the earlier suit No. 354 of 1939 had been instituted against Ram Lal without appointment of a guardian-ad-litem, so that the decree in the suit was a nullity. The sale in execution of that decree was also, therefore, challenged as void. This defence was accepted by the trial Court and the suit was dismissed on 24th January, 1950. The first appellate Court also upheld that decision. The second appeal came before a learned single Judge of the Allahabad High Court who referred it to a Division Bench as, in his opinion, the case involved an important question of law. The Bench of the High Court confined the decisions of the lower Courts and, consequently the appellant has now come up to this Court by special leave.

3. As has been mentioned above, the suit was dismissed by the trial Court and that decision has been upheld by the first and the 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, therefore, void. It appeals 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 O. 32, R. 15 of the Code of Civil Procedure. It has been found as a feet 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 R. 15 of O. 32 of the Code of Civil Procedure so that the decree obtained against Ram Lal was a decree which, has to be treated as without jurisdiction and void. In these circumstances, the sale held in execution of that decree must also be held to be void.

4. Learned Counsel appearing on behalf of the appellant contended that this proposition should not be accepted by us in view of the decision of this Court in Janak Raj v. Gurdial Singh 1967-2 SCR 77. The decision of that case is, however, not available to the case before us at all. In that case, a stranger to the suit was the auction-purchaser of the judgment-debtor s immovable property in execution of an ex parte money decree. Before the sale could be affirmed, the ex parte decree was set aside and the question arose whether the auction-purchaser was entitled to a confirmation of the sale under 0. 21, R. 92 C.P.C. The Court held that the sale should be confirmed. The law makes ample prov