2010 (9) TMI 1256 - HC - Indian Laws

Summary

Issues Involved:
1. Maintainability of the suit in view of the bar contained in Order 23 Rule 3-A of the Code of Civil Procedure (CPC).

Summary:

Issue 1: Maintainability of the Suit in View of Order 23 Rule 3-A of CPC

The appellants-defendants filed a Second Appeal u/s 100 of CPC against the judgment and decree dated 10-05-2001, which affirmed the trial court's decision dated 13-10-1995. The substantial question of law was whether the suit was maintainable given the bar in Order 23 Rule 3-A of CPC.

The respondents-plaintiffs sought a declaration that the decree dated 7-7-1980 in Civil Suit No. 393-A/1980 was null and void, alleging fraud and lack of proper representation as minors. The trial court decreed in favor of the plaintiffs, and the appellate court upheld this decision.

The appellants contended that the suit was barred by Order 23 Rule 3-A of CPC, citing various judgments to support their claim. Conversely, the respondents argued that the decree was void due to non-compliance with mandatory provisions for recording compromise on behalf of minors.

The court examined the provisions of Order XXIII Rule 3 and Rule 3-A, as well as Order XXXII regarding suits involving minors. It was found that no guardian was appointed for the minor defendant Amarchand in the original suit, rendering the compromise and subsequent decree void.

The court referenced several Supreme Court judgments, including Ram Chandra Arya v. Man Singh and Kaushalya Devi v. Baijnath Sayal, which established that a decree against a minor without a guardian is a nullity. The court also noted that a void decree is not binding on minors and can be challenged.

The court concluded that since Amarchand was not properly represented, the decree was not binding on him, making the suit maintainable despite Order 23 Rule 3-A. The appellants' failure to raise the issue of maintainability earlier and their submission to the court's jurisdiction further weakened their position.

The appeal was dismissed with costs, affirming that the suit filed by the plaintiffs was maintainable and the provisions of Order 23 Rule 3-A of CPC were not applicable in this case. The appellants were ordered to pay costs to the defendants No. 1 to 3 of all courts, with counsel fees certified at Rs. 2000/-.