The main legal point established in the judgment is that a decree passed against a minor can be set aside if the minor's interest has been prejudiced due to the conduct of the guardian, as per Order XXXII Rule 3A of the Code of Civil Procedure, 1908.

JUDGMENT :

This regular second appeal has been filed under Section 100 and Order XLII Rule I of the Code of Civil Procedure, 1908 by defendants 5 and 6 in O.S.No.83/2012 on the files of the Munsiff’s Court, Haripad and they impugn verdict in the above suit as well as the verdict in A.S.No.78/2017 on the files of the Additional District Court-I, Mavelikkara. The respondents are the plaintiff and defendants 2 and 3 in the above suit.

2. Heard both sides. Perused the lower court records.

3. I shall refer the parties in this regular second appeal as ‘plaintiff’ and 'defendants’ for convenience.

4. At the time of admission, this Court formulated the following substantial questions of law as per order dated 01.07.2022.

“1. When the plaintiff, a minor, who was represented by the mother – the natural guardian is it legal to find that the minor was not properly represented at the time of earlier suit?

2. Whether it is legal and proper to find that there is no service of summons in the previous suit when service of summons to mother has been declared in the former suit and when the plaintiff has no case that notice to the mother was not proper?

3. Is it legal to find that the plaintiff is not bound by the execution proceedings pursuant to O.S.No.391/1997 when execution is as against the property of the father for his liability?

4. Is it legal and proper in decreeing partition of half right of the plaintiff without directing the plaintiff to pay the proportional liability with interest towards the amount due from the father?”

5. This is a suit filed by the plaintiff, Anju Hariharan, seeking the relief to set aside the decree in O.S.No.391/1997 and the sale in execution of the said decree, recovery of possession, partition and permanent prohibitory injunction. According to the plaintiff, O.S.No.391/1997 filed by the plaintiff therein was decreed after declaring defendants 1 and 2 therein as ex parte. Thereafter, the decree was executed and the entire plaint schedule property was sold in court auction and subsequently, the first defendant herein/decree holder in O.S.No.391/1997 got delivery of the same. The plaintiff herein was a minor at the time of the proceedings and on attaining majority at the age of 19, she filed the present suit seeking the above prayers.

6. The first defendant filed written statement and resisted the suit contending that the entire proceedings in execution of O.S.No.391/1997 were over and therefore, the present suit to set aside the decree and judgment in O.S. No.391/1997 is not sustainable. The second defendant also filed written statement specifically contending that this is a suit filed in collusion between the plaintiff and the third defendant.

7. The trial court recorded evidence and ventured the matter. PW1 examined and Exts.A1 to A6 were marked on the side of the plaintiff. DW1 examined and Ext.B1 to B6 were marked on the side of the defendants. Ext.C1 series marked as court exhibits and X1 and X2 series also were marked.

8. Finally, the trial court decreed the suit, declaring that the decree in O.S.No.391/1997 on the files of the Munsiff's court, Haripad, the sale in execution of the said decree and subsequent transfer of property would not bind the plaintiff and her half share over the plaint schedule property. Accordingly, preliminary decree was passed declaring half title of the plaintiff over the plaint schedule property.

9. Although appeal filed challenging the said verdict, the said appeal also was dismissed.

10. The learned counsel for defendants 5 and 6, who are the legal heirs of the first defendant, argued that when O.S.No.3971/1997 was filed, the mother of the present plaintiff got arrayed as the first defendant and the plaintiff herein got arrayed as the second defendant, with prayer to appoint the first defendant, the mother of the plaintiff herein, as the guardian of the minor. Since, on notice, the first defendant did not turn up, the trial court declared both defendants ex parte and thereafter, an ex part