The Supreme Court on Friday has upheld the Madras High Court Judgment which held that an ex-parte decree passed against a minor without proper appointment of a guardian is a nullity.
In a Civil Revision Petition filed under Section 115 of the Code of Civil Procedure, 1908 challenging an order of the trial Court refusing to condone the delay of 862 days in seeking to set aside an exparte decree for specific performance, the High Court found that the exparte decree was a nullity, as it was passed against a minor without the minor being represented by a guardian duly appointed in terms of the procedure contemplated under Order XXXII, Rule 3 of the Code. Therefore, the High Court, exercising its power of superintendence under Article 227 of the Constitution, set aside the exparte decree itself on condition that the petitioners before the High Court/defendants pay a sum of Rs.2,50,000/, representing the amount already spent by the decree holders in purchasing stamp paper etc. The decree holders challenged the said order of High Court before Apex Court.
The bench consisting of Justice Indira Banerjee and Justice V Ramasubramanian said,
“It is too well settled that the powers of the High Court under Article 227 are in addition to and wider than the powers under Section 115 of the Code. In Surya Dev Rai vs. Ram Chander Rai and Others, this Court went as far as to hold that even certiorari under Article 226 can be issued for correcting gross errors of jurisdiction of a subordinate Court. But the correctness of the said view in so far as it related to Article 226, was doubted by another Bench, which resulted in a reference to a three member Bench. In Radhey Shyam & Anr. vs. Chhabi Nath & Others , the three member Bench, even while overruling Surya Dev Rai (supra) on the question of jurisdiction under Article 226, pointed out that the jurisdiction under Article 227 is distinguishable. Therefore, we do not agree with the contention that the High Court committed an error of jurisdiction in invoking Article 227 and setting aside the ex-parte decree.”
Further, the Court held that the decree passed against a minor without proper appointment of a guardian, is a nullity ipso facto or whether the same would depend upon prejudice against the minor being established.