1951 Present: Nagalingam J. and Swan J.

HAMID, Appellant, and MARIKAR et al., Respondents

 S. C. 14-D. C. Colombo, 4,851 (P)

Mortgage-Decree entered on bond-Objection that bond was void cannot be taken thereafter.

Lunatic-Unrepresented by guardian ad litem-Validity of decree entered against him-Contract of person adjudged lunatic-Made during lucid interval- Is such contract valid?-Civil Procedure Code (Cap. 86), ss. 476 ct seq., 502, 555 et seq., 578.

Where a mortgage bond is put in suit a decree entered thereon by a Court of competent jurisdiction would be binding on the mortgagor and those claiming through him, even if the mortgage bond was in fact null and void. The objection that the bond is a nullity should be taken before judgment is entered. Once decree is entered the mortgage creditor's rights and the mortgage debtor's liability must be considered as based on the decree and not on the bond ; it cannot thereafter be contended that if the bond was null and void a decree entered thereon must also be null and void.

A decree entered against a person of unsound mind who was unrepresented Toy a guardian ad litem. is good and binding against him until it is set aside; the failure to have a guardian ad litem appointed is at the most an irregularity.

Obiter : A contract of a lunatic while the adjudication of lunacy remains unreversed would be valid if it can be shown that at the time he entered into the contract he was of sound mind and understood the nature of the transaction

APPEAL from a judgment of the District Court, Colombo.

One Razeena Umma was adjudged to be of unsound mind and her husband was appointed manager of her property. While this order of adjudication remained unreversed, Razeena Umma, assisted by her husband mortgaged certain property without obtaining the permission of Court. The mortgage bond was put in suit and at the execution sale the mortgaged premises were sold and purchased by X. In the hypothecary action Razeena Umma was not represented by a guardian ad litem. In the present partition action the title of X to the property which he had purchased at the execution sale was challenged by the heirs of Razeena Umma.

M. Markhani (N. E. Weerasoaria, K.C., with him), for the plaintiff appellant.-The District Judge has taken the view that the mortgage decree was voidable only and not null and void. This is incorrect. A decree against an unrepresented lunatic is a nullity. In Khiarajmal v. Daim 1[ (1905) L. R. 32 Ind. A p. 23.] the Privy Council held that, where a minor was sued without a guardian ad litem being appointed, the decree and the court-sale that took place in execution of the decree were absolutely null and void, because in the absence of the proper representation of the minor the Court had no jurisdiction. In Moothetuth Kanari v. Hari Shenoy 2 [A. I. R. (1917) Madras 616.]it was held that a lunatic stands in the same position as a minor, and therefore a sale of a lunatic's properties in execution of a decree entered against him in a suit in which he was not properly represented by a guardian ad litem is. a nullity and the lunatic can resist an action for possession without seeking to set aside the sale. In Hakimullah v. Nobin Chandra Barua 3[A. I. R. (1915) Calcutta 19], it was held that a sale in execution of a decree obtained against a lunatic who had not been properly represented is without jurisdiction and void and not merely voidable. The fact that it was not brought to the notice of the Court that the defendant was a lunatic left the Court entirely without jurisdiction.

As regards the order made in the mortgage action confirming the sale, it is submitted that section 344 of the Civil Procedure Code does not enable a person to raise questions of title in execution proceedings- Peris v. Silva 4[(1918) 21 N. L. R. 117.]. The Court had no power to re-adjudicate on the question of lunacy on the application of th