The duty of the court to appoint a guardian ad litem for effective representation of the case on behalf of a person of unsound mind, as provided in Order 32 Rule 15 of the CPC.

(Prayer: Petition has been filed under Article 227 of the Constitution of India against the order and decreetal order dated 27.06.2005 made in E.A. No.1365 of 2005 in E.P. No.1584 of 2004 in O.S. No.6935 of 1996 on the file of the X Assistant Judge, City Civil Court, Chennai.)

This Civil Revision Petition has been preferred against the order and decreetal order dated 27.06.2005 made in E.A. No.1365 of 2005 in E.P. No.1584 of 2004 in O.S. No.6935 of 1996 on the file of the X Assistant Judge, City Civil Court, Chennai.

2. It is seen that the Execution Petition in E.P. No.1584 of 2004 was filed by the respondent/decree holder, pursuant to the decree passed in O.S. No.6935 of 1996 for specific performance of the contact. The Execution Application in E.A. No.1365 of 2005 was filed by the petitioners/judgment debtors under Order XVI Rules 6 and 7 read with Rule 14 of CPC., seeking permission to examine one Doctor Reginald, if he is not available to examine any other competent Doctor attached to the Appolo Hospital, No.21 Greames Lane, Chennai-600 006, to speak about the discharge summary report dated 02.06.1991.

3. It is an admitted fact that the respondent/decree holder had filed the suit seeking specific performance of contract against one Thanikachalam alias Chalam and the petitioners herein are the legal representatives of the said person. The petitioners have stated that an exparte decree was obtained by the respondent/decree holder on 06.01.1997 and subsequently E.P. Nos.2088 of 1997 and 2090 of 1997 were filed and dismissed on 05.06.2002 and according to them the aforesaid Thanikachalam was a mental patient and he could not have executed the sale deed. Hence, the decree passed by the court below is a nullity. With the aforesaid plea, the petitioners have sought an order to examine a Doctor by name Reginald to speak about the discharge summary report dated 02.06.1991 and if he is not in service to examine some other Doctor of the Appolo Hospital.

4. As contended by the learned counsel appearing for the respondent/decree holder, the petitioners being the legal representatives of the deceased cannot go beyond the scope of the decree. Though the decree was passed nearly 23 years after the separate decree, the petitioners have come forward with a defence that the deceased Thanikachalam was a mental patient and to establish the said factum that they want to examine a Doctor who attended the said person on 02.06.1991. Had it been true, they could have filed an application under Order 9 Rule 13 CPC. to set aside the exparte decree dated 06.01.1997, immediately after the decree being passed. The respondent/decree holder has stated in the counter that I.A. Nos.19709 of 1999, 19710 of 1999, 19711 of 1999 and 15553 of 2000 were already filed to examine the Doctor stating that the defendant was mentally ill, during the pendency of the above application. However, no attempt was made to produce the defendant before the trial court to enable the court to adjudge his mental condition.

5. According to the learned counsel appearing for the respondent/decree holder, the claim of the petitioners is legally not maintainable and that the same is only a delay tactics adopted by the petitioners. In the impugned order, the court below has specifically stated that the very same petitioners have filed a similar petition before the trial court during the life time of the deceased. However, they failed to proceed with the same and hence the petition was dismissed. Even, the deceased was not produced before the court below for holding enquiry, prior to the death of the said deceased on the alleged reason.

6. It is not in dispute that Order 32 Rule 15 apply to persons of unsound mind, who, though not so adjudged are found by the court on enquiry to be incapable, by reason of any mental infirmity, of protecting their interest when suing or being sued. The rights of such person has to be protected as per Rule 15 Order 32 of CPC.

7. In the instant case