BALAKRISHNAN Vs. KALLIYANI

JUDGEMENT

(1.) This is a petition by the defendant in OS 73 of 1948 on the file of the Sub-Court at Palghat. That was a suit for money due under two promissory notes alleged to have been executed by the defendant in favour of the plaintiff. In the suit the defendant was described as a lunatic and accordingly his younger brother Viswanathan was proposed to be appointed as his guardian. The plaint averment that the defendant was a lunatic was accepted by the trial Judge who thereupon passed an order appointing Viswanathan as the guardian of the defendant. Summons of the suit was issued to the guardian alone who after acceptance of the summons chose to remain ex parte. He appears to have gone one step further and to have appeared as the plaintiffs first witness and to have proved the plaint promissory note. On the strength of such evidence the suit was decreed against the defendant on 7.10.1948. The defendant filed the present application I.A. 1540/51 on 19.10.1951 praying that the ex parte decree against him may be set aside under O.9 R.13 of the Code of Civil Procedure and the suit restored to file for fresh disposal after hearing his contentions also. He questioned the validity of the proceedings under which his brother Viswanathan was appointed as guardian without any notice to him. It was also alleged by him that he came to know of the suit and the decree against him only when notice of execution was taken to him and that the restoration application was filed soon after receipt of notice of execution. The trial court repelled these contentions and held that Viswanathans appointment as the defendants guardian was legal and proper. It was also held that the restoration application was barred by limitation. The lower appellate Court also agreed with these findings of the trial Judge with the result that the Civil Miscellaneous Appeal against the trial courts order dismissing the restoration application was also dismissed. The defendant has therefore filed this petition seeking a revision of the lower courts order.

(2.) It is clear from the records in the case that no attempt was made to have the summons in the suit served on the defendant. The failure to do so is sought to be justified by the fact that the defendant was represented by a guardian appointed by the Court and that the summons to him was served on such guardian. If the appointment of the guardian was not made in strict compliance with the procedure prescribed by law, service of summons on the guardian cannot be deemed as service on the defendant. Viswanathan, the brother of the defendant, was appointed as his guardian on the basis of the plaintiffs allegation that the defendant was a lunatic at the relevant period. R.15 of O.32 of Civil P.C. prescribes the procedure to be followed in such a situation. The rule states that:

(3.) On the question of limitation also the lower court have fallen into a serious error because of the failure to direct attention to the true facts as disclosed by the records. Both the lower courts held that the defendants restoration application is out of time, the period being calculated from the date of the ex parte decree. In making such a calculation the lower courts have assumed that the defendant had not stated the date on which he came to know of the decree. The restoration application filed on 19.10.1951 was followed up by another application, I.A. 308/52 dated 8.2.1952 and both these applications were supported by separate affidavits. In the first affidavit by the defendant it was stated that he came to know of the decree only when the execution notice was served on him. In the second affidavit this date was specified as 25.9.1951. The correctness of this averment was not challenged by the plaintiff and hence the defendants allegation that he came to know of the suit and the decree only on 25.9.1951 has to be accepted as true and correct. The restoration application was filed within 30 days of this date and hence it is within time.