V.K. Mehrotra, J. - (1.) V.K. Mehrotra, J.-Hari Shankar Srivastava is the owner-landlord of house No. 888, Dariyabad, Allahabad. Prabhat Sharma, the first applicant lives in that house as a tenant along with Smt. Savitri Sharma, Arvind Sharma, Kumari Vandana and Kumari Sushma. Smt. Savitri Sharma is his mother. Mamta Sharma. who is the second applicant, is the wife of Hari Krishna Sharma through whom Prabhat Sharma has filed the present revision. He is brother-in-law of Prabhat Sharma.
(2.) SUIT no. 32 of 1981 instituted by Hari Shankar Srivastava against Smt. Savitri Sharma and others for recovery of arrears of rent and for their eviction was decreed by the 4th Addl. District Judge Allahabad exercising powers of Judge, Small Cause Court on August 17, 1982. Civil Revision no. 647 of 1982 filed against this decree was dismissed by this Court on December 8, 1982. On the prayer made on behalf of the counsel for the applicant in that case for grant of some time to vacate the accommodation, the court granted two months further time, apart from the time already granted by the trial court for the purpose, "provided the applicants give undertaking in writing in the court below within two weeks that they would deliver the vacant possession to respondent no. 1 immediately on the expiry of two months........." The undertaking was filed on December 23, 1982 but the accommodation was not vacated within the time allowed by this Court. Hari Shankar Srivastava then put the decree into execution. The proceedings were registered as Execution case no. 4 of 1982. In it, two applications were filed by the applicant. They were registered as Misc. case nos. 2 and 3 of 1983. The latter was an application under Order XXXII Rule 5 read with section 47 CPC. An interlocutory order was passed in Misc. case no. 3 of 1983 on March 23, 1983. That order was assailed in a Civil revision before this Court under section 25 of the Provincial Small Cause Courts Act. The revision was dismissed on April 2, 1983. Another order in the proceedings was assailed in civil revision no. 200 of 1983. This court disposed of that revision on April 28, 1983 observing therein that the execution case may be decided expeditiously. The case is, however, still pending. The order under challenge in the present revision was passed on November 5, 1987. The facts noticed earlier only give an idea of the time that litigation may take by recourse to proceedings before courts of law by a litigant with some ingenuity. By the impugned order, the objection under section 47 CPC has been dismissed. It has been held by the court below that applicant Mamta Sharma had been duly served with the notice of suit no. 32 of 1981 and inspite of full knowledge of the proceedings she chose not to file her own written statement or contest the proceedings. The decree against her was affirmed by this Court in Civil Revision No. 647 of 1982. She lived in the same house with applicant Prabhat Sharma and her mother and other family members who are opposite parties no. 2 to 5 to the present revision. It has also been held that Prabhat Sharma was not a person of unsound mind. He was capable of defending himself and, in fact, had actually signed the notice meant for him in the suit personally. He had also signed a vakalatnama engaging a counsel for filing Civil Revision No. 647 of 1982 in this Court apart from signing a vakalatnama in the suit itself. The written statement in the suit was duly signed by him. The decree against him did not deserve to be set aside on the ground that he was a person of unsound mind and should have been represented through a next friend in the proceedings in the suit.
(3.) SRI Janardan Sahai appeared on behalf of the applicants. He confined the case to the objection relating to Prabhat Sharma alone. The only submission made was that the conclusion arrived at by the court below that Prabhat Sharma was not a person of unsound mind had not been arrived at in accordance with law and deserved to be set aside. Prabhat Sharma, according to his submission, being a person of unsound mind deserved to be treated at par with a minor and a guardian should have been appointed for him. Since it was not done, the decree in suit no. 32 of 1981 was a nullity as far as Prabhat Sharma was concerned. It could not be executed against him. Order XXXII CPC treat a person of unsound mind at par with a minor. By rule 15, it makes rules 1 to 14 of this Order applicable to a person of unsound mind except rule 2-A. A decree passed against a person to whom this order applies, without appointment of a guardian is a nullity and is to be treated as non est-Ram Chandra Arya v. Man Singh, AIR 1968 SC 954. In a case where the court, through ignorance, makes no inquiry as to the lunacy of a person and assumes jurisdiction over him, the proceeding is a nullity. The decree passed against him is also a nullity when it is found that he was incapable of protecting his interest in the suit in question-Bhondu Mal v. Thomas Skinner, AIR 1937 Allahabad 29. To bring a case under Order 32 rule 15, CPC it is not necessary to establish that a person is absolutely insane. It is sufficient if it is established that he was suffering from such mental infirmity as rendered him unfit to protect his own interest-Amulya Ratan Mukherjee v. Smt. Kanak Nalini Ghose, AIR 1950 Calcutta 30.;