BALAKRISHNAN Vs. N.B. BALACHANDRAN AND ANR.

JUDGEMENT

(1.) THIS is a very peculiar case. The petitioner, Balakrishnan, when admittedly sane, executed a promissory note for Rs. 1,000 in favour of one Andi on 22nd January, 1946. That promissory note was said to have been assigned by Andi for proper consideration to one Balachandran, the first respondent. This Balachandran brought a suit, O.S. No. 234 of 1948, on the file of the District Munsif's Court, Palghat, on that promissory note. When the summons went to Balakrishnan, who was then undergoing a term of imprisonment in goal, it was returned with the endorsement that Balakrishnan was insane. On that endorsement, and without any further enquiry under Order 32, Rule 15, Civil Procedure Code and acting on the endorsement as if it were conclusive in the matter, the learned District Munsif held that the man was insane, and appointed his brother, one Viswanathan, as manager and guardian ad litem of the alleged lunatic. This Viswanathan was a coparcener with Balakrishnan and was entitled to a half share in the joint properties. He appears to have been more anxious to save his half share from the result of any decree that might be passed in the suit. So, his written statement mainly consisted of a denial of the liability of his half share in the properties for the decree amount. P.W. 1 was examined on behalf of the plaintiff, and he stated that the promissory note was supported by consideration, and that it had been duly endorsed in favour of the plaintiff. He had attested the original promissory note in favour of Andi. He added that the plaintiff would be satisfied with a decree against the share of the defendant, Balakrishnan, in the joint family properties, though the question would hardly arise in a promissory note suit. The learned District Munsif delivered a judgment in which he specifically stated that the guardian, that is, Viswanathan, the brother, had no objection to a decree being passed if it would not bind his half share. Acting on the evidence of P.W. 1 regarding the consideration and the endorsement, he decreed the suit with costs on 29th September, 1948. Balachandran transferred the decree to one Kalliani (Respondent 2 here), who sought to execute it.

(2.) BALAKRISHNAN , claiming to be sane right through, filed I.A. No. 339 of 1952 in O.S. No. 234 of 1948, for setting aside the decree under Order 9, Rule 13, Civil Procedure Code, stating that he knew about the decree only when notice went to him on 7th January, 1952, in E.P. No. 10 of 1952. He urged that he was wrongly declared insane, and that no notice was Served on him and he could not be present on the date of the ex parte decree and he was wrongly made to be represented by his brother, Viswanathan, who had not acted in his interest, but only in his own interest. The learned District Munsif held that it was not an ex parte decree, as Balakrishnan had been represented by his manager and guardian, Viswanathan and who had appeared through two advocates, Messrs. Madhavan Nair and Sankakaran Nair. So, he dismissed the I.A. with costs. Balakrishnan then filed C.M.A. No. 40 of 1952 in the Court of the Subordinate Judge, Palghat. The learned Subordinate Judge held that the appointment of Viswanathan as guardian was not proved to be improper, and that Balakrishnan was insane at that time. So, he dismissed the C.M.A. with costs. Hence, this Civil Revision Petition.