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ROHIT ARYA
DECD. Kaluram – Appellant
Versus
Sitaram – Respondent
Key Points: - The judgment discusses whether absence of formal appointment of a next friend or guardian ad litem for a person of unsound mind warrants nullity of a decree, and whether such representation by a relative suffices to protect interests in partition proceedings. (!) (!) - It addresses the maintainability of applications under section 47 CPC and Order 22 CPC in proceedings for final decree under Order 20 Rule 18 read with section 54 CPC, including whether these provisions apply in execution-like finalization stages. (!) (!) - It considers whether the death of Kaluram (defendant No.8) during pendency affects the proceedings and the permissible scope of remedies for his sister Ahilya Bai under orders including Order 32 Rule 5 CPC and Order 22 Rule 4 CPC, and whether the preliminary decree, having attained finality, can be challenged. (!) (!) (!)
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 app
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