HEMANSU NARANDAS PATEL Vs. MANIBEN DHANJIBHAI GANDHI

JUDGEMENT

(1.) Heard ld. Sr.Counsel Mr. DD Vyas with ld. Counsel Mr. Dhaval.D.Vyas for the petitioner.

(2.) Invoking jurisdiction of this Court under Article 227 of the Constitution of India, the petitioner (original-defendant no.4) has challenged the order passed by ld. Civil Judge (S.D.), Navsari dated 11.02.2005 below application exh.23 in Regular Execution Petition No. 7/2003 as well as the order passed by the appellate Court in Regular Civil Appeal No.0/2005. The ld. Civil Judge, vide impugned order rejected the application exh.23 resisting the execution proceedings initiated by the original judgment creditor of Reg. Civil Suit No.259 of 1988, a suit for house rent and possession and decree passed was challenged by way of an appeal and then in a Revision Application. The proceedings had seen the Court Room of the Apex Court at one stage.

(3.) The ld. Sr.Counsel Mr.Vyas has taken this Court through the scheme of Rule 3 of Order 32 of CPC. It is argued that when the trial Court passed the decree, the appellant No.4 was a minor and in absence of formal order of appointment of guardian for appellant-defendant No.4,decree against defendant No.4 is a nullity and, therefore, the same can not be executed at least against defendant No.4 i.e. present petitioner. It is, therefore, argued that the Lower Court has failed in appreciating the spirit of the scheme of Rule 3 of Order 32 of CPC, especially when the law is settled by the Apex Court vide its decision in the case of Abdul Rahim Abdul Sidique & Another v/s Shantilal Vanechand & Company, 8 GLR 702, wherein the Apex Court has observed thus:- A minor can not be treated as if he were of full age during the investigation of any material averment in the suit. If a defendant in a suit claims to be a minor, the Court trying the suit must first satisfy itself as to his minority for if in fact he is a minor, no question arising in the suit can be decided without appointing a guardian for him. The Court must even for the purpose of holding an inquiry into the minority of the defendant appoint a guardian for the defendant.