Non-compliance with the provisions of Order 32, Rule 3, does not invariably render the decision of the Court a nullity.

D.K.Mahajan, J.

1. The question which has necessitated this case to be heard by a larger Bench is, whether non-compliance with the provisions of Order 32, Rule 3, Code of Civil Procedure in every case renders the decree a nullity ?

2. The Courts below decreed the plaintiff s suit. This decree was passed in a suit for possession by pre-emption filed by Karnail Singh plaintiff. The sale sought to be pre-empted was made by Asa Singh, grandfather of the plaintiff. The vendees, defendants 1 to 4, are Amrik Singh and three others. They are real brothers. Defendants 3 and 4, Amrik Singh and Vir Singh are minors. In the plaint the minors were sued through their real brother Satnam Singh as their guardian. An application was made under Order 32, Rule 3 of the Code of Civil Procedure to the effect that Satnam Singh, defendant No. 1, the eldest brother of the minors, be appointed their guardian. It was also mentioned that Ajit Singh brother, Mangal Singh father, Smt. Tirath Kaur mother and an officer of the Court were fit to be appointed as guardian of the minors. It was stated that defendant No. 1 had no interest adverse to the minors; and in case defendant No. 1 refuses to act as the guardian any one out of the other persons mentioned be appointed as the guardian. Notice of this application was issued to the minors as well as defendant 2, the father and the mother. Notice was not served on the father or the mother but it was served on the two defendants as well as on the minors. Defendant No. 1 refused to act as the guardian and thereafter the Court proceeded to appoint Shri Madan Gopal Advocate as the Court guardian for defendants 3 and 4.

3. The suit was contested by the two major brothers on all conceivable grounds. The trial Court decreed the suit and this decision has been maintained by the learned District Judge. Before the learned District Judge, the contention was raised that the decree of the trial Court was a nullity, inasmuch as, the provisions of O. 32, R. 3 had not been complied with. This contention was negatived by the lower appellate Court. Against the decision of the lower appellate Court, a second appeal was preferred to this Court. This appeal was placed before me on 22nd September, 1972, and I directed that it be heard by a Full Bench so far as the two minors were concerned. The appeal filed by the major defendants was rejected on merits. On the merits, the decision with regard to the minor defendants would be the same.

4. Before proceeding to determine the question referred it would be appropriate to notice Section 99 of the Code of Civil Procedure which is in the following terms:-

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"No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court."

In Kiran Singh V/s. Chaman Paswan, AIR 1954 SC 340, it was observed by their Lordships of the Supreme Court, while dealing with Section 99 that "when a case had been tried by a Court on the merits and judgment rendered, it should not be liable to be reversed purely on technical grounds, unless it had resulted in failure of justice................". While dealing with the provisions of the Code of Civil Procedure it was observed in Sangram Singh V/s. Election Tribunal, Kotah, AIR 1955 SC 425, as follows:-

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"Now a code of procedure must be regarded as such. It is procedure, something designed to facilitate justice and further its ends: not a penal enactment for punishment and penalties: not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should, therefore, be guarded against (provided always that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it. Next, there must be ever present to