An ex parte decree against a minor or person of unsound mind without proper representation is void and can be challenged under O.9, R.13, CPC.

1. The petitioner filed this writ petition under Art.227 of Constitution of India questioning the legality, propriety and validity of the order dated 25-8-1990 passed in Civil Revision No.04/1988 by Fourth Additional Judge to the Court of District Judge, Bilaspur affirming the order dated 18-2-1988 in M.J.C. No. 02/1978 passed by Fourth Civil Judge, Class - II, Bilaspur setting aside the ex parte decree dated 7-10-1974 against Bhola Nath in Civil Suit No. 56 - B of 1973 (parties hereinafter shall be referred to as per the description before the trial Court).

2. Briefly stated, facts giving rise to this petition are that Bhola Nath, the defendant entered into an agreement to sale dated 10-8-1973 (Annexure - P / 1) for consideration of Rs. 10,000/- with the plaintiff and received Rs. 5,000/- as earnest money. The plaintiff (since deceased) served a notice upon the defendant for execution of the registered sale deed and thereafter filed a suit for refund of earnest money registered as Civil Suit No. 56 - B / 73 against Bhola Nath and his younger brother Pawan Kumar, a minor. After the summons returned unserved with an endorsement of incorrect address, the plaintiff was permitted to effect substituted service by publication of summons in daily newspaper and accordingly, summons were published in the newspaper on 11-7-1974 giving the date of hearing as 13-7-1974. Thereafter, the defendant was proceeded ex parte on 29-8-1974. Shri D. R. Sharma, an advocate was appointed as guardian ad litem for minor defendant No. 2. The plaintiff was permitted to amend the plaint and delete the name of minor defendant No. 2 from the array of the defendants on 5-9-1974. After the amendment, no fresh summons were issued to the defendant who was proceeded ex parte and on the same day, i. e. 5-9-1974, ex parte evidence was recorded and ex parte decree was passed on 7-10-1974 and the same was put in execution. The house which was agreed to be sold by the defendant was attached on 25th October, 1976 and sold in auction to Ram Prasad Yadav, who was also put in possession of the house on 12-3-1977.

3. The defendant Bhola Nath through his next friend Smt. Munni Bai, filed an application (Annexure - P / 3) on 2-1-1978 for setting aside ex parte decree on the ground that the defendant was of unsound mind since 1972-73 after about three years from the death of his father. There was no due service of summons upon him and he learnt about the proceedings a week before the next friend came to know about the ex parte decree and the application is filed within 30 days from the date of knowledge of the ex parte decree. During pendency of the application, the defendant died on 5-1-1984 and his legal representatives were brought on record. The plaintiff / decree - holder also died and his legal representatives were brought on record on 8-10-1995.

4. The trial Court after appraisal of evidence adduced by the respective parties and also on the ground that the process in the execution case dated 14-2-1976 and 14-7-1976 were received unserved with an endorsement that judgment debtor is not sane since last four years, recorded a categorical finding that the defendant became insane completely since 1972 and his insanity was extreme, he was sent to Ranchi for treatment in the year1972-73 and accordingly, set aside the ex parte decree. The revision against the order of trial Court was further dismissed.

5. During the course of the argument, apart from other arguments, an objection was raised against the maintainability of the application und