IMPORTANT POINTS
(1) Powers of High Court under Article 227 of Constitution are in addition to and wider than powers under Section 115 of CPC.
(2) Rule 3A of CPC applies only to cases where next friend or guardian for suit of minor has interest in subject matter of suit adverse to that of minor.
(3) There is no place for any innovative arguments contrary to one’s own pleadings.

JUDGMENT

V. Ramasubramanian, J.

In a Civil Revision Petition filed under Section 115 of the Code of Civil Procedure, 1908 (for short "the Code"), challenging an order of the trial Court refusing to condone the delay of 862 days in seeking to set aside an ex-parte decree for specific performance, the High Court found that the ex-parte decree was a nullity, as it was passed against a minor without the minor being represented by a guardian duly appointed in terms of the procedure contemplated under Order XXXII, Rule 3 of the Code. Therefore, the High Court, exercising its power of superintendence under Article 227 of the Constitution, set aside the ex-parte decree itself on condition that the petitioners before the High Court/defendants pay a sum of Rs.2,50,000/-, representing the amount already spent by the decree holders in purchasing stamp paper etc. Aggrieved by the said order of the High Court, the decree holders are before us in this special leave petition.

2. We have heard Mr. S. Nagamuthu, learned senior Counsel appearing for the petitioners/plaintiffs and Mr. R. Balasubramanian, learned senior counsel appearing for the respondents/defendants.

3. In a suit O.S. No.264 of 2013 filed by the petitioners-herein for specific performance of an agreement of sale dated 25.04.2011, the respondents were duly served with summons, but after having entered appearance through counsel they remained ex-parte. The trial Court decreed the suit ex-parte on 08.04.2015.

4. At this stage it may be relevant to take note of one fact, namely, that the petitioners sought, as an alternate relief, a decree for refund of the money paid with interest at 18% per annum in the event of the Court not granting the relief of specific performance. But the trial Court held albeit without reasons, that the petitioners are entitled, for the primary relief of specific performance.

5. In the plaint as it was filed by the petitioners- herein, the third defendant was described as "minor S Aravindarajan, aged about 16 years, son of Sampathkumar represented by the next friend father M. Sampath kumar". Therefore, the petitioners had filed, along with the plaint, an application in I.A No.981 of 2013 under Order XXXII, Rule 3 of the Code for appointing the second respondent- herein (his father and the second defendant) as the guardian of the minor. As noted by the High Court, the trial Court, after serving notice on the second defendant, passed an Order in I.A.No. 981 of 2013 on 23.03.2014 to the following effect:-

"Batta served. Vakalat by guardian to minor filed. Hence this petition is closed."

6. Seeking execution of the decree, the petitioners filed E.P No.33 of 2015. Notices were served on all the respondents in the Execution Petition and the Execution Petition is said to have come up for hearing on two dates in December-2015 and on several dates in the year 2016. Eventually the respondents were set ex-parte in the Execution Petition on 18.10.2016 and the petition was allowed.

7. Thereafter the respondents filed an application in November-2016 for setting aside the ex-parte order in the Execution Petition. It was numbered only in the year 2017 as E.A. No.40 of 2017.

8. But in the meantime the petitioners were called upon to deposit non-judicial stamp papers of the value of Rs. 1,98,000/- for the execution of the sale deed. They did so and a sale deed was in fact executed by the Court on 04.01.2017.

9. It is only thereafter that the respondents filed an application in I.A No. 142 of 2017 for condonation of the delay of 862 days in seeking to set aside the ex-parte decree. This application filed on 19.09.2017 was dismissed by the trial Court by an order dated 28.11.2017, primarily on three grounds namely: (i) that there was no proper explanation for the delay; (ii) that even the written statement was not filed within the time stipulated in Order VIII, Rule 7; and (iii) and that after allowing even the execution to proceed ex-parte and after having allowed the sale deed to be ex