AMRIK SINGH Vs. KARNAIL SINGH

JUDGEMENT

(1.) THE question which has necessitated this case to be heard by a larger Bench is, whether non-compliance with the provisions of Order 32, Rule 3, Code of Civil procedure in every case renders the decree a nullity ?

(2.) THE Courts below decreed the plaintiff 's suit. This decree was passed in a suit for possession by pre-emption filed by Karnail Singh plaintiff. The sale sought to be pre-empted was made by Asa Singh, grandfather of the plaintiff. The vendees, defendants 1 to 4, are Amrik Singh and three others. They are real brothers. Defendants 3 and 4, Amrik Singh and Vir Singh are minors. In the plaint the minors were sued through their real brother Satnam Singh as their guardian. An application was made under Order 32, Rule 3 of the Code of Civil Procedure to the effect that Satnam Singh, defendant No. 1, the eldest brother of the minors, be appointed their guardian. It was also mentioned that Ajit Singh brother, Mangal singh father, Smt. Tirath Kaur mother and an officer of the Court were fit to be appointed as guardian of the minors. It was stated that defendant No. 1 had no interest adverse to the minors; and in case defendant No. 1 refuses to act as the guardian any one out of the other persons mentioned be appointed as the guardian. Notice of this application was issued to the minors as well as defendant 2, the father and the mother. Notice was not served on the father or the mother but it was served on the two defendants as well as on the minors. Defendant No. 1 refused to act as the guardian and thereafter the Court proceeded to appoint Shri madan Gopal Advocate as the Court guardian for defendants 3 and 4.

(3.) THE suit was contested by the two major brothers on all conceivable grounds. The trial Court decreed the suit and this decision has been maintained by the learned District Judge. Before the learned District Judge, the contention was raised that the decree of the trial Court was a nullity, inasmuch as, the provisions of O. 32, R. 3 had not been complied with. This contention was negatived by the lower appellate Court. Against the decision of the lower appellate Court, a second appeal was preferred to this Court. This appeal was placed before me on 22nd september, 1972, and I directed that it be heard by a Full Bench so far as the two minors were concerned. The appeal filed by the major defendants was rejected on merits. On the merits, the decision with regard to the minor defendants would be the same.