The appointment of next friend or guardian ad litem is essential to protect the interest of a person of unsound mind in a suit, ensuring substantive justice between the parties.

Rohit Arya, J.

1. Taking exception to the order dated 04/10/2018 passed in MJC No.77/2010 by III Additional District Judge, Badwani in the proceedings for formulation of final decree under Order 20 rule 18 read with section 54 CPC after finality of the preliminary decree dated 07/05/2007 in civil suit No.21A/2005 confirmed by this Court on 07/03/2014 in F.A.No.411/2007, Smt. Ahilyabai wife of Dineshchandra Rathod, sister of defendant No.8 has approached this Court under Article 227 of the Constitution of India proposing herself as next friend of petitioner/defendant No.8 Kaluram since dead (date of death 14/08/2018), a person alleged to be of unsound mind.

By the impugned order, the Court below has rejected three applications, viz., (i) an application under section 47 CPC objecting to passing of the final decree on the premise that the defendant No.8 Kaluram was a person of unsound mind but, as the trial Court did not follow the procedure under Order 32 rule 3 and 4 CPC for appointment of guardian ad litem, the preliminary decree dated 07/05/2007 is null and void; (ii) an application under Order 32 rule 5 CPC proposing herself as the next friend of Kaluram; and (iii) an application under Order 22 rule 4 CPC for impleading her as legal representative of Kaluram who has passed away during pendency of the instant proceedings on 14/08/2018.

The trial Court while rejecting the first application has assigned reasons to the effect that proceedings under Order 20 rule 18 read with section 54 CPC are not execution proceedings, therefore, section 47 CPC has no application inasmuch as, the said application empowers the executing Court to determine the questions of the nature described therender; while rejecting the second application under Order 32 rule 5 CPC; it has assigned the reasons to the effect that during pendency of the suit for partition and possession vide civil suit No.21A/2005 neither any objection nor an application under Order 32 rule 5 CPC was filed.

The plaintiff filed a suit for the claim of half share in the suit property inter alia pleading that the suit property was purchased by the original plaintiff, Sitaram and father of defendants, Narayan Rathod jointly vide registered sale deed dated 15/06/1966, therefore, after death of Narayan Rathod, he is entitled for partition against the defendants 1,2,3,4, 5 and the defendant No.8 as well as Maniklal (since dead) by his legal heirs defendants No.6 and 7 for division and apportionment of half of the suit property.

The defendant No.1 is the elder brother of defendant No.8 and has reared and looked after him. He has filed joint written statement on his behalf and on behalf of the defendant No.8 with common rights and interest in the instant suit.

Even otherwise, mere absence of formal order appointing guardian ad litem does not vitiate the decree if defendant No.8 was represented in the suit by his brother in absence of parents and, therefore, no prejudice is caused to his interest (Johari and others v. Mahila Droupati, AIR 1991 SC 340, relied upon) and while rejecting the third application, relying upon Order 22 CPC, the trial Court has found that no proceedings are pending of the nature as contemplated there under, therefore, the aforesaid application is not maintainable in the instant proceedings as the provisions of Order 22 rule 3, 4 and 8 CPC have no application to the proceedings of the execution of the decree or order. Moreover, the brother of defendant No.8 was already on record and protected his interest, therefore, the instant application filed by the applicant styling herself to be sister of the deceased, Kaluram was held to be not maintainable that too at a distance of more than seven years after the preliminary decree has attained finality.

2. Shri Aniket Abhay Naik, taking exception to the impugned order has raised contentions, firstly; in absence of an order for appointment of next friend or guardian ad litem of the deceased Kaluram (defendant No.8) in te