The main legal point established in the judgment is that the appointment of a guardian for a defendant, based on an allegation of mental infirmity, requires a proper inquiry to be conducted by the court. Additionally, the calculation of the limitation period for a restoration application should consider the date on which the defendant came to know of the decree.

1. This is a petition by the defendant in O.S. 73 of 1948 on the file of the Sub-Court at Palghat. That was a suit for money due under two promissory notes alleged to have been executed by the defendant in favour of the plaintiff. In the suit the defendant was described as a lunatic and accordingly his younger brother Viswanathan was proposed to be appointed as his guardian. The plaint averment that the defendant was a lunatic was accepted by the trial judge who thereupon passed an order appointing Viswanathan as the guardian of the defendant. Summons of the suit was issued to the guardian alone who after acceptance of the summons chose to remain ex parte. He appears to have gone one step further and to have appeared as the plaintiff's first witness and to have proved the plaint promissory note. On the strength of such evidence the suit was decreed against the defendant on 7.10.1948. The defendant filed the present application I.A. 1540/51 on 19.10.1951 praying that the ex parte decree against him may be set aside under O. IX, R.13 of the Code of Civil Procedure and the suit restored to file for fresh disposal after hearing his contentions also. He questioned the validity of the proceedings under which his brother Viswanathan was appointed as guardian without any notice to him. It was also alleged by him that he came to know of the suit and the decree against him only when notice of execution was taken to him and that the restoration application was filed soon after receipt of notice of execution. The trial court repelled these contentions and held that Viswanathan's appointment as the defendant's guardian was legal and proper. It was also held that the restoration application was barred by limitation. The lower appellate Court also agreed with these findings of the trial judge with the result that the Civil Miscellaneous Appeal against the trial court's order dismissing the restoration application was also dismissed. The defendant has therefore filed this petition seeking a revision of the lower court's order.

2. It is clear from the records in the case that no attempt was made to have the summons in the suit served on the defendant. The failure to do so is sought to be justified by the fact that the defendant was represented by a guardian appointed by the Court and that the summons to him was served on such guardian. If the appointment of the guardian was not made in strict compliance with the procedure prescribed by law, service of summons on the guardian cannot be deemed as service on the defendant. Viswanathan, the brother of the defendant, was appointed as his guardian on the basis of the plaintiff's allegation that the defendant was a lunatic at the relevant period. R.15 of 0.32 of Civil P.C. prescribes the procedure to be followed in such a situation. The rule states that:

"The provisions contained in R.1 to 14, so far as they are applicable, shall extend to persons adjudged to be of unsound mind and to persons who though not so adjudged are found by the Court on inquiry by reason of unsoundness of mind or mental infirmity, to be incapable of protecting their interests when suing or being sued".

Rr.1 to 14 of 0.32 deal with suits by or against minors. The procedure to be followed in the matter of the appointment of a guardian for the minor defendant is that laid down in R.3 and 4. Sub-r.1 of R.3 states that:

"Where the defendant is a minor, the Court on being satisfied of the fact of his minority, shall appoint a proper person to be guardian for the suit for such minor".

Sub-r. 2 states:

"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".

Sub-r. 3 states that

"Such application shall be supported by an affidavit verifying the fact that the proposed guardian has no interest in the matter in controversy in the suit adverse to that of the minor and that he is a fit person to be so appointed".

Sub-r. 4 states that

"No order