DECD. KALURAM Vs. SITARAM

JUDGEMENT

(1.) Taking exception to the order dated 04/10/2018 passed in MJC No.77/2010 by III Additional District Judge, Badwani in the proceedings for formulation of final decree under Order 20 rule 18 read with section 54 CPC after finality of the preliminary decree dated 07/05/2007 in civil suit No.21A/2005 confirmed by this Court on 07/03/2014 in F.A.No.411/2007, Smt. Ahilyabai wife of Dineshchandra Rathod, sister of defendant No.8 has approached this Court under Article 227 of the Constitution of India proposing herself as next friend of petitioner/defendant No.8 Kaluram since dead (date of death 14/08/2018), a person alleged to be of unsound mind.

(2.) Shri Aniket Abhay Naik, taking exception to the impugned order has raised contentions, firstly; in absence of an order for appointment of next friend or guardian ad litem of the deceased Kaluram (defendant No.8) in terms of Order 32 rule 5 CPC, the impugned judgment and preliminary decree dated 07/05/2007 is null and void relying upon the judgment of the Hon'ble Supreme Court in the case of Ram Chandra Arya Vs. Man Singh and another, AIR 1968 SC 954, secondly; there is no prescription of time limit to challenge the same on its executability in law and the entire proceedings following the impugned judgment dated 07/05/2007 (supra) are vitiated by errors of law as illegal and since defendant No.1 having acted on his behalf and on behalf of defendant No.8 as well, such representation is in violation of Order 32 rule 4 first proviso of CPC. Hence, the trial Court has committed patent illegality rejecting the applications discussed above in the impugned order warranting interference under Article 227 of the Constitution of India.

(3.) Per contra, Shri Gandhi, learned counsel for the respondents has supported the order impugned with the following contentions: