LAWS(MAD)-1980-3-35

SARADAMANI Vs. RAJENDRAN

Decided On March 18, 1980
SARADAMANI Appellant
V/S
RAJENDRAN Respondents

JUDGEMENT

(1.) This civil revision Petition raises the question as to whether a decree obtained against a minor defendant ex parte can be regarded as a nullity after the minor comes of age and accuses the guardian ad litem of improperly allowing the suit to be disposed of ex parte.

(2.) The petitioner in this civil revision petition was a Party to a partition suit. She was impleaded as the 5th defendant. She was a minor at the time, represented in the suit by her mother and guardian who was also impleaded in her own right, as the first defendant. Both these defendants opposed the partition suit. They filed a written statement to that effect. It came to Pass, however that on the day when the suit was Posted for trial. And was called the minor's guardian did not turn up Learned counsel, who had entered appearance both for the minor and her guardian in the suit, then reported no instructions. On this representation the Court set them ex parte and proceeded to pass an ex parte preliminary decree as against them. In due course a final decree in the suit followed. The plaintiff's share in the suit properties was declared as 3/20 under the Preliminary decree Under the final, decree the plantiff was allotted certain items as and towards his share. These items were in the possession of the 5th defendant for delivery of Possession. By this time the 5th defendant had attained majority and was also duly declared as a major. At that stage she moved an application before the execution court for a declaration that the ex parte decrees passed against her were nullities and hence cannot be executed as against her. Her contention was that she had not been properly represented in the suit during her minority by her mother as guardian ad item. The executing Court did not accept this contention and dismissed her application.

(3.) In this civil revision petition brought by the fifth defendant, her learned counsel Mr. K. Raghtmathan urges that the action of the guardian in allowing an ex parte decree to be passed vaonist the mixior showed that the guardian had not a exercised due diligence in protecting the minor's interests.