K.P. Natarajan & Anr. vs. Muthalammal & Ors. [Special Leave Petition (C) No.2492 of 2021]
Decree against minor without having been represented by a duly appointed guardian is nullity
Brief: In the instant petition the Supreme Court affirmed that a decree against a minor without the minor having been represented by a guardian duly appointed in terms of the procedure contemplated under Order XXXII, Rule 3 of the Code is a nullity. Further, the Supreme Court reiterated that the powers of the High Court under Article 227 are in addition to and wider than the powers under Section 115 of the Code and it was within the jurisdiction of the Court to call records of the case and determine about the minority and illegality while hearing revision against order dismissing application for condonation of delay.
RELEVANT PARAGRAPH
1. 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 exparte decree for specific performance, the High Court found that the exparte 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 exparte 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.
22. The contention that in a revision arising out of the dismissal of a petition under Section 5 of the Limitation Act, 1963, the High Court cannot set aside the exparte decree itself, by invoking the power under Article 227, does not appeal to us. It is too well settled that the powers of the High Court under Article 227 are in addition to and wider than the powers under Section 115 of the Code. In Surya Dev Rai vs. Ram Chander Rai and Others, this Court went as far as to hold that even certiorari under Article 226 can be issued for correcting gross errors of jurisdiction of a subordinate Court. But the correctness of the said view in so far as it related to Article 226, was doubted by another Bench, which resulted in a reference to a three member Bench. In Radhey Shyam & Anr. vs. Chhabi Nath & Others, the three member Bench, even while overruling Surya Dev Rai (supra) on the question of jurisdiction under Article 226, pointed out that the jurisdiction under Article 227 is distinguishable. Therefore, we do not agree with the contention that the High Court committed an error of jurisdiction in invoking Article 227 and setting aside the exparte decree.
33. Therefore, we find no illegality in the order of the High Court warranting our interference under Article 136. Hence, this Special Leave Petition is dismissed.