IN THE HIGH COURT OF KERALA
Decided On: 10.06.2014
Appellants: Femi Joseph
Vs.
Respondent: Branch Manager, The Federal Bank
Vs.
Respondent: Branch Manager, The Federal Bank
Hon'ble Judges/Coram:T.R. Ramachandran Nair and P.V. Asha , JJ.
Citation: 2014 (2) KHC 772, 2014(3)KLJ222,AIR 2014 kerala 147
1. The appeal is filed by the petitioner in E.A.440/2012 in E.A.221/2012 in E.P.219/2007 in O.S.No. 214/2006 on the file of the Sub Court at Irinjalakuda, She is the 2nd judgment debtor.
2. The application was filed with a contention that, even though originally, the petitioner was a minor and was being represented by the guardian, after attaining majority on 28.5.2009, the same was not recorded, and therefore no separate notice was issued to her. Only when the Amin from the court came to effect the delivery, she came to know about the proceedings.
3. The court below rejected the contentions of the appellant on the finding that, simply for the reason that her majority was not recorded, it cannot be said that the appellant was not aware of the execution proceedings. She had a duty to come on record on attaining majority and contest the proceedings. On the merits it was found that judgment debtors 1 to 3 had filed a joint statement of objection in execution proceedings. Therefore, it cannot be contended that the sale conducted is void. It was also noted that she was staying with her mother, the first judgment debtor, when she was a minor and it cannot be said that she was unaware of the execution proceedings.
4. Heard both sides. Learned counsel for the appellant Sri. T.N. Manoj submitted, by referring to Sub Rules 5 and 12 to Rule 3 of Order XXXII C.P.C that the factum of attainment of majority should have been recorded and notice should have been issued to the appellant.
5. Sub Rule 5 of Order XXXII Rule 3 of Civil Procedure Code reads as follows:
"A person appointed under sub-rule (1) to be guardian for the suit for a minor shall, unless his appointment is terminated by retirement, removal or death, continue as such throughout all proceedings arising out of the suit including proceedings in any Appellate or Revisional Court and any proceedings in the execution of a decree".
6. In fact the situation that has arisen here is not covered by the said rule. Then the question is whether Rule 12 will enable the appellant to advance the contention raised herein and we extract me said rule herein below:-
O.32, R.12. Course to be followed by minor plaintiff or applicant on attaining majority:-(1)"A minor plaintiff or a minor not a party to a suit on whose behalf an application is pending shall, on attaining majority, elect whether he will proceed with the suit or application.(2) Where he elects to proceed with the suit or application, he shall apply for an order discharging the next friend and for leave to proceed in his own name.(3) The title of the suit or application shall in such case be corrected to as to read. henceforth thus:-"A B late a minor, by CD his next friend, but now having attained majority."(4) Where he elects to abandon the suit or application, he shall, if a sole plaintiff or sole applicant, apply for an order to dismiss the suit or application on repayment of the costs incurred by the defendant or opposite party or which may have been paid by his next friend.(5) Any application under this rule may be made ex-parte: but no order discharging a next friend and permitting a minor plaintiff to proceed in his own name shall be made without notice to the next friend.
7. Of course, it is submitted by the learned counsel for the appellant that what is mentioned therein is applicable only in respect of minor plaintiffs etc. Learned counsel for the respondent Sri. Mohan Jacob George submitted that in the light of the decision of this Court reported in Hameedu Rowther & Others v. Padmanabhan & Others, MANU/KE/0217/1966 : 1966 KLT 1106 and that of the Andhra Pradesh High Court in S. Lakshmi Narayana v. Gangamma, 2010 KHC 6366 , in a situation like this, the minor defendant had to record the majority and elect to contest the proceedings. It is submitted that in the absence of any specific rule under Order XXXII of CPC providing for any notice to the defendants or judgment debtors who have attained majority during the proceedings, the defendant has to choose to come on record.
8. In Hameedu Rowther & Others, MANU/KE/0217/1966 1966 KLT 1106 it was held by a learned Single Judge of this court in paragraph 5 as follows.
"The provision casts a responsibility on the minor, who attains majority, to elect on attaining majority, to proceed with the suit or application or not :o proceed with it. Evidently, if he does not elect and the suit or application proceeds with his guardian or next friend on record, the decision in the suit or application will certainly bind him."
That was a case where 5th plaintiff was a minor who was represented by the 3rd plaintiff as next friend.
9. Alike issue raised herein was considered by a learned Single Judge of the Andhra Pradesh High Court in the decision reported in S. Lakshmi Narayana v. Gangamma, 2010 KHC 6366 wherein, in paragraphs 4 & 5 the following findings have been rendered:-
"This is a case where the minor defendant claims to have attained majority during the pendency of the suit. It is also true that the suit was decreed without discharging the guardian. The question that arises for consideration is whether the decree passed in the suit without discharging the guardian and without notice to such defendant, who attained majority pending the suit, as a nullity.It is to be noticed that there is no specific provision under O.32 of CPC with regard to a minor defendant who attained majority during the pendency of the suit. R.12 of O.32 of CPC deals only with the course to be followed by minor plaintiff on attaining majority. As per O.32, R.12(2) of CPC where a minor plaintiff on attaining majority elects to proceed with the suit, he shall apply for an order discharging the next friend and for leave to proceed in his own name. Sub-rule (5) of R.12 further provides that no order on such application shall be made without notice to the next friend. Similarly, R.13 of O.32 of CPC deals with a situation where a minor co-plaintiff on attaining majority desires to repudiate the suit. The above provision make it clear that a plaintiff on becoming a major can elect to go on with or put an end to the litigation. It is apparent that the defendant has no such choice and the suit must proceed against him notwithstanding the fact that he attained majority. In the circumstances, if a minor defendant who attained majority did not choose to come on record and contest the suit himself, he must be. deemed to have elected to abide by the representation of the guardian and the judgment and decree eventually passed in the suit would be binding upon him."
10. Apparently, the view taken is that as far as the defendant is concerned, there is no choice like a minor plaintiff who attains majority and the suit must proceed against him notwithstanding the fact that he attained majority. What follows is that, if a minor defendant who attained majority did not choose to come on record and contest the suit by himself, he must be deemed to have elected to abide by the representation of the guardian and the judgment and decree eventually passed in the suit would be binding upon him. The same principle will squarely apply in respect of the situation herein is concerned.
11. The appointment of guardian for a minor defendant is governed by Rule 3 of Order XXXII C.P.C. Going by Sub-rule (5) of Rule 2, "a person appointed under sub-rule (1) to be guardian for the suit for a minor shall, unless his appointment is terminated by retirement, removal or death, continue as such throughout all proceedings arising out of the suit including proceedings in any Appellate or Revisional Court and any proceedings in the execution of a decree." A Division Bench of this court in Savithri v. Vasudevan Nambudiri, MANU/KE/0136/1959 : AIR 1959 Ker, 387 had occasion to consider Rules 3and 12 of Order XXXII C.P.C. It was held that "the minor defendant who comes of age may, if he thinks fit, come on the record and conduct the defence himself. The Division Bench in paragraph 4, has relied upon a decision of the Madras High Court in Sanyasi v. Yerran Naidu, MANU/TN/0047/1927: AIR 1928 Mad, 294, We herein below extract the relevant portion from paragraph 4:
"The matter should if at all, have been intimated to the Court, by the 5th defendant proposed as guardian or the 6th defendant himself. As held in Sanyasi v. Yerran Naidu MANU/TN/0047/1927 : AIR 1928 Mad 294":"No provisions have been made in the Civil Procedure Code, in respect of a minor defendant attaining majority. Therefore the minor defendant who comes of age may, if he thinks fit, come on the record and conduct the defence himself. If, however, he does not do so and allows the case to proceed as though he was still a minor without bringing to the notice of the Court, the fact of his having attained majority, then he must be deemed to have selected to abide by the judgment or adjudication by the Court with respect to the matters in controversy on the basis of the suit at the time."
In the decision in N.M. Rayalu Iyer Nagasami Iyer and Co. v. Chockanarayanan Chettiar, MANU/TN/0181/1954 : AIR 1954 Mad. 237 a Division Bench of the Madras High Court has adopted the view taken in Sanyasi v. Yerran Naidu, MANU/TN/0047/1927 : AIR 1928 Mad 294 and other decisions and it has been held in paragraph 4 as follows:
"The next point decided against the appellant by the lower Court is that when E.P.No. 88 of 1947 was filed by the plaintiff petitioner for execution of the security bond, Sokkanarayanan Chettiar, the contesting respondent, was a major, and therefore the proceedings taken with regard to the sale of properties consequent upon the orders in E.P.No. 88 of 1947 would not be binding on him & such being the case no property could be sold in execution. The learned Judge did not rely upon any decision in support of the view taken by him, but he was of opinion that at the time when the orders in execution were made in E.P.No. 88 of 1947 Sokkanarayanan had become a major and such orders should be treated as null and void so far as he is concerned, and would not have any legal effect. It is settled in this Court by a long line of cases that if, at the inception of a certain proceeding or at the time a suit is instituted a party is a minor represented by a guardian, but during the course of the proceeding or the suit he becomes a major and a decree is passed on the footing that he was only a minor, such a proceeding would be binding on the erstwhile minor, if he had not been declared a major at the time of the decree or a final order. The decisions in support of this proposition are Sanyasi v. Yerran Naidu, MANU/TN/0047/1927 : AIR 1928 Mad. 294) (A), -- 'Sundaram Reddi v. Pattabhiramireddi'AIR 1918 Mad. 545 (B), --'Venkatasomeswararao v. Lakshmanaswami',MANU/TN/0155/1928 : AIR 1929 Mad 213 (FB) (C), --'Murugappa Mudaliar v. Desappa Nayanim' MANU/TN/0143/1950: AIR 1950 Mad. 314(D)".
We respect fully agree with the view taken in the above decisions.
12. Apart from the same, the judgment debtors have filed a common objection as is evident from the order passed by the court below. Therefore, as far as the requirement of a further notice is concerned, practically, it was not necessary. For all these reasons, we dismiss the appeal. The parties will bear their costs.
At this stage, the learned counsel for the appellant sought for adjournment of delivery for one month from today to enable the appellant to pay off the debt to the bank. We adjourn the delivery by one month from today.
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