NEDDURI KONDA REDDY Vs. MADDIRALA CHENNAIAH

JUDGEMENT

(1.) The plaintiff. Nedduri Konda Reddy, is the petitioner. He filed the suit. O. S. No. 68/1975 against the defendant. Maddirala Chennaiah, for a specific performance on the foot of an agreement of sale. The defendant was set ex parte. Then he filed an Interlocutory Application to set aside the ex parte decree with a petition to condone the delay and it is pending. While so. his wife, Yogamnia filed a petition under Order 32. Rule 3 C. P. C. to appoint her as the guardian of the defendant on the around that the defendant was suffering from congenital mental Infirmity and now he had become completely demented, incapable of taking care of his interests. The plaintiff filed a counter stating that the defendant was not mentally infirm, he had received summons in the suit, filed an application to set aside the ex parte decree, and the present application was filed only to defeat the decree and the execution proceedings. The learned Subordinate Judge, Markapur, allowed the application holding that the defendant was incapable of protecting his interests by reason of his mental infirmity and appointed his wife to be the guardian ad litem. Questioning that Order the plaintiff has filed this revision.

(2.) The learned counsel for the petitioner submitted that Order 32. Rule 15 C. P. C., as amended, by Act No. 104 of 1976. has no application, for the suit was filed before the amendment came into force, that under Order 32. Rule 15 C. P. C., before amendment, the Court had power to appoint a guardian only in the beginning when the defendant appears in the suit, but not afterwards, and even otherwise, in the present case, the lower court did not properly conduct the enquiry before coming to the conclusion that the defendant was incapable of protecting his interests due to mental infirmity.

(3.) Order 32. Rule 15 C. P. C. as it stands amended by the Amending Act No. 104 of 1976 provides, that Rules 1 to 14 (except Rule 2 (a)) shall so far as may be, apply to persons adjudged before or during the pendency of the suit to be of unsound mind and shall also apply to persons who, though not so adjudged, are found by the Court on enquiry to be incapable, by reason of any mental infirmity of protecting their interests when suing or being sued Section 97 (2) (v) C. P. C. says that Rules 2 (a), 3 (a) and 15 of Order 32 of the First Schedule as amended or, as the case may be, substituted by Section 79 of the Amending Act shall not apply to a suit pending at the commencement of the said Section 79 and every such suit shall be dealt with and disposed of as if the said Section 79 had not come into force. The Amendment Act came into force with effect from 1/02/1977. The suit was filed in 1975. Therefore. I agree with the learned counsel for the petitioner that Order 32. Rule 15 C. P. C., as amended, has no application. It is only the unamended provision that is applicable. The learned counsel for the respondent has also fairly conceded this position.