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High Court Of Delhi
ORIENTAL BANK OF COMMERCE - Appellant
Versus
M.K.GUPTA AND COMPANY PRIVATE LIMITED.-JUDGMENT-DEBTORS - Respondent
Execution 146 of 1985
Decided On : 08/25/1992
CIVIL PROCEDURE CODE - ORDER 32 RULE 3 - APPOINTMENT OF GUARDIAN AD LITEM FOR MINOR DEFENDANT - MANDATORY - DECREE PASSED AGAINST MINOR WITHOUT APPOINTMENT OF GUARDIAN AD LITEM - NULLITY - SALE OF PROPERTY IN EXECUTION OF SUCH DECREE - VOID - ORDER 21 RULE 89 CPC - NOT APPLICABLE - OBJECTIONS U/ORDER 21 RULE 90 CPC FOR SETTING ASIDE SALE ON GROUND OF IRREGULARITY AND FRAUD - MAINTAINABLE.
Fact of the Case:
A minor defendant, Kumari Bhavna, was not duly represented in a suit and the decree passed against her was executed by attachment and sale of a property owned by her and other judgment debtors. The minor's mother, Smt. Malti Gupta, acted as her natural guardian in the suit, but no formal order was passed appointing her as guardian ad litem. The minor's objections to the sale were filed under Order 21, Rule 90 CPC, alleging material irregularity and fraud in publishing and conducting the sale.
Finding of the Court:
The court held that the decree passed against the minor without the appointment of a guardian ad litem was a nullity and void. The sale of the property in execution of such a decree was also void. The court further held that the provisions of Order 21, Rule 89 CPC, which allow a person claiming an interest in the property sold to apply to have the sale set aside by depositing a certain amount in court, were not applicable in this case. The objections filed by the minor under Order 21, Rule 90 CPC for setting aside the sale on the ground of irregularity and fraud were maintainable.
Issues: 1. Whether the decree passed against the minor defendant without the appointment of a guardian ad litem was a nullity? 2. Whether there was any material irregularity or fraud in publishing or conducting the sale? 3. Whether the sale could be set aside at the instance of the judgment debtor without compliance with Order 21, Rule 89? 4. Whether the objections filed by J. Ds. 2 to 4 were not maintainable in view of their earlier objections filed and dismissed?
Ratio Decidendi: 1. The court relied on the Supreme Court judgment in Ram Chander Arya v. Man Singh and Another, wherein it was held that a decree passed against a minor without the appointment of a guardian is a nullity and void. 2. The court found that there was no formal order appointing a guardian ad litem for the minor and that she was not effectively represented by her mother. 3. The court held that the provisions of Order 21, Rule 89 CPC were not applicable in this case as the minor was not seeking to have the sale set aside by depositing the amount specified in the sale proclamation. 4. The court held that the objections filed by judgment debtors 2 to 4 were maintainable as they related to the sale of the property and not to the attachment of the property.
Final Decision: The court set aside the sale of the property conducted in execution of the decree against the minor. The auction purchaser was entitled to an order for repayment of the purchase money deposited by him in court. The parties were left to bear their own costs.
( 1 ) THESE objections have been filed on behalf ofthe judgment debtors under Order 21, Rule 90 read with Sees. 47. 151 CPCfor setting aside the sale. Smt. Malti Gupta, Judgment Debtor No. 3 andkumari Bhavna (minor) judgment debtor No. 5 have stated in their objectionpetition (which is the subject matter of E. A. 137/1990) that Smt. Malti Guptais 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 minorand the interest of the mother is not adverse to that of the minor. Theproperty bearing Plot No. 4, Block C, Community Centre, Janakpuri, Newdelhi 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 aminor and she was not duly represented either in the case or in the executionproceedings and thus the decree passed against the minor defendant withouthaving guardian ad litem appointed is a nullity and void. Consequently thesale 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 forappointment of her guardian was made in the suit and no guardian wasappointed. Even otherwise she was not properly represented and therefore,the decree against her was a nullity and the decree can not be executedagainst her. Even in the execution proceedings no guardian was appointedfor 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 proclamationwas neither published or affixed on the spot or any conspicuous portion ofthe 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 offailure to publish the sale proclamation the objectors have suffered substantially as there was no bidder. The persons from the locality did not knowabout 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 attractprospective bidders for lack of sufficient time and publicity to arrange forhuge amount payable at the strike of the hammer. No passerby or theneighbour could even imagine to make arrangements for the bid money atthat short interval and this material irregularity has caused substantial injuryto the Objectors. The objectors have learnt later on that the so called bidderswere the procured and hired henchmen and puppets of the auction purchaserwho bad gathered there at the instance of the auction purchaser. The allegedbidding proceedings were conducted in the office of the Court Auctioneer intis Hazari Courts premises. To the same effect are the objections filed on behalf of judgmentdebtors No. 2 and 4.
( 4 ) THE objections are contested on behalf of the decree holder. Theobjections are stated to be hopelessly barred by time and these have been filedonly to delay the proceedings. The minor was represented in the main suitby the same guardian who has now filed the psesent petition. The propertyis owned by all the judgment debtors. It was denied that the minor was notduly represented either in the case or in the execution proceedings. Theinterest of the minor had been adequately safeguarded by her mother andnatural guardian in the suit. The sale is not void ab initio as alleged. Theappointment of guardian ad litem was not necessary as alleged. The motherwho 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 thatthe objectors were not served with the notice of the
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