R. VELLADURAI Vs. C. TAMIL SELVI

JUDGEMENT

(1.) The Civil Revision Petition has been filed seeking to set aside the order and decreetal order dated 27.03.2017 in E.A. No. 688/2014 in E.P. No. 840 of 2013 in O.S. No. 7540 of 2000 passed by the Learned X Assistant Judge, City Civil Court, Chennai.

(2.) The Learned Counsel for the Petitioner would submit that the Petitioner is the Judgment Debtor in O.S. No. 7540 of 2000 filed by the Respondents/Plaintiffs. He would further submit that the First Respondent had filed the suit in O.S. No. 7540 of 2000 on behalf of the Second Respondent as his mother and natural guardian. He would further submit that even during the pendency of the suit, the Second Respondent minor had attained majority and that the First Respondent did not bring it to the knowledge of the Trial Court. He would further submit that as per Order XXXII Rule 12 of the Code of Civil Procedure, 1908, when a minor plaintiff becomes major, he has to make an election whether to contest the suit or abandon the same and if he chooses to continue with the suit, he has to apply for discharging of his next friend. He would further submit that in this case, the Respondents have failed to do so. He would further submit that even as per the judgment dated 25.04.2012 in O.S. No. 7540 of 2000, the Second Respondent was aged 15 years during the year 1999 and subsequently, after obtaining judgment and decree, the Respondents have filed the Execution Petition in E.P. No. 840 of 2013. He would further submit that even at that stage, though the Second Respondent has attained majority, it was suppressed and that the Execution Petition was filed only by the First Respondent as mother and natural guardian of the Second Respondent in violation of Order XXXII Rule 12 of the Code of Civil Procedure, 1908. He would further submit that thereby, the Revision Petitioner has filed an application in E.A. No. 688 of 2014 under Section 47 of the Code of Civil Procedure, 1908, to dismiss the E.P. No. 840 of 2013 as the decree dated 24.05.2012 passed in O.S. No. 7540 of 2000 is null and void and in executable under law. He would further submit that the Petitioner had raised two grounds, viz., one stating that the suit property is a Government property and that the name of the settlor of the Second Respondent figures in the register of the Government as encroacher and another ground is that procedure under Order XXXII Rule 12 of the Code of Civil Procedure, 1908, has not been followed. He would further submit that though the Respondents/Plaintiffs have filed counter, they did not appear appear before the Execution Court and that they were set exparte, whereas the Execution Court without properly considering the objections raised by the Petitioner, had dismissed the E.A. No. 688 of 2014. He would further submit that in fact, the Second Respondent is the actual party interested in the suit and the First Respondent has filed the suit and the Execution Petition as the mother and next friend of the Second Respondent. He would further submit that the Petitioner is not aware whether the Second Respondent is interested in continuing with the execution proceedings or not, whereas the Learned Judge did not take into consideration that the Second Respondent, who is the interested person, has been kept in dark even after the decree and that the Execution Petition has been filed by mother of the Second Respondent as next friend without bringing the interested party on record. He would further submit that in view of the non-compliance of Order XXXII Rule 12 of the Code of Civil Procedure, 1908, the decree itself has become null and void and not valid in the eye of law and in executable under law. He would further submit that when a ground has been raised by the Petitioner and it has been brought to the notice of the Court that the Second Respondent has attained majority, the Court ought to have issued notice to the Second Respondent for appearance before the Court and the Court should have heard the Second Respondent with regard to the continuance of the execution proceedings and directed him to take positive steps in compliance of Order XXXII Rule 12 of the Code of Civil Procedure, 1908, whereas the Court without considering that aspect erred in dismissing the application. He would further submit that even in the Civil Revision Petition, the First Respondent has not stated anything about the Second Respondent having attained majority and whether the Second Respondent is interested in proceeding with the execution proceedings. He would further submit that even before this Court the interested party has not filed vakalat and the First Respondent, who is the mother of the Second Respondent, has filed the vakalat on behalf of both the Respondents. He would further submit that once, when the Plaintiff attains majority, he is required to take certain positive steps and the litigation cannot be permitted to exist in a vacuum and he cannot be allowed to take a plea that he would continue to be represented by his guardian and thereby, the entire proceedings have to be set aside. In respect of his contention, he would rely on the judgment of the Madhya Pradesh High Court in Bajranglal -vs- Umesh Kumar and another reported in [(2001) 4 M.P.L.J. 274].

(3.) Mr. A.G.Rajan, Learned Counsel for the Respondent would submit that non-filing of necessary application under Order XXXII Rule 12 of the Code of Civil Procedure, 1908 is not an illegality and it could be only an irregularity. However, he would further submit that the matter may be remitted back to the Execution Court and the Second Respondent may be permitted to file necessary applications as per law to discharge the next friend and natural guardian and declare him as major and contest the Execution Petition on merits.