1. The Petitioner before me is the auction-purchaser in a Court sale. The 2nd Respondent, i.e. the Corporation of the City of Bangalore, instituted a suit in the court of the First Mansiff, Banglore, against the 1st Respondent and got a decree The service of the summons in the said suit was effected on 2-9-1949 by registered post. On 10-9-1949, an expert decree was passed in favour of the 2nd Respondent.
An application was thereafter made on behalf of the 1st Respondent by her husband to set aside the said decree. The main ground in that application was that the Respondent 1 was of unsound mind. The lower Court held on evidence adduced before it that the 1st Respondent was of unsound mind and set aside the decree. The present petition has been filed against the said order of the lower Court.
2. Two grounds were urged in support of this petition. In the first place it was urged that the application is not maintainable. The second ground urged was that there has been gross misappreciation of the evidence by the Court below. With regard to the first ground, it was contended by the learned Advocate appearing for the petitioner before me that the only remedy open to the defendant in such a case was to file a suit for a declaration that the decree is a nullity and not binding upon her and the application was not maintainable. In support of that contention he relied on a decision of the Oudh Chief Court reported in Mrs. Alexander v. M.S. Jalil and also a decision of this Court in Nanjundiah v. Padmarajiah, 37 Mys HCR 181.
3. As against the said contention of the learned Advocate for the Petitioner, the learned Advocate for the 1st Respondent urged before me that the application is maintainable either under Order 32, Rule 5 Sub-rule (2) of the Code of Civil Procedure or under Section 151 of the Civil Procedure Code. (4) Order 22, Rule 5 Sub-rule (2) of the Code reads as follows:
'Every order made in a suit or on any application, before the, Court in or by which a minor is in any way concerned or affected, without such minor being represented by a next friend or guardian, for the suit, as the case may be, may be discharged, & where the pleader of the party at whose instance such order was obtained knew, or might reasonably have known, the fact of such minority, with costs to be paid by such pleader.'
1 should mention that by virtue of the provisions continued in Order 32, Rule 15, this rule has been made applicable to persons adjudged to be of unsound mind and to persons who though not so adjudged are found by the Court on inquiry, by reason of un-soundness of mind or mental infirmity, to be incapable of protecting their interests when suing or being sued.
5. As for the decision of this High Court, it appears that the effect of the provisions of Order 32, Rule 5, Sub-rule (2) was not considered in that case. Their Lordships were not called upon to consider and did not consider the question as to whether or not such an application lies under Order 32, Rule 5, Sub-rule (2) of the Code of Civil Procedure or under Section 151 of the Code.
That being so, the decision of this High Court to which the learned Advocate for the petitioner referred is, in my opinion, is not of much assistance for the present purpose. In the case decided by the Oudh Chief Court it was no doubt held that Order 32 Rule 5 is not applicable unless the order in question is made while the proceedings in a suit are still pending.
6. On the other hand the High Court 08 Allahabad in the case of Moti Chand v. Balram Das : AIR1933All116 has taken a different view on this question. Their Lordships in that case observed as follows:
'The learned Advocate for the applicant has relied strongly on the case of Punnayya v. Kotayya, AIR 1920 Mad 713 and urged before us that the only remedy open to a minor who is not property represented is to bring a separate suit, and that he cannot be allowed to be heard in the suit itself because he is not a party. We may point out that the view which has prevailed in this Court has been that a minor against whom a decree has been passed without the appointment of a proper guardian has several remedies open to him; he may in that very suit, if the facts justify, appeal against the decree, apply for re-hearing under Order 9, Rule 13, apply for a review of judgment or apply for an order under Order 32 Rule 5(2) of the Code, and he has in addition the ordinary remedy to bring a separate suit,'
This view expressed in the Allahabad case was accepted by the High Court of Lahore in Arura Vir Singh v. Punjab Zamindara Bank Ltd. Lyallpur, AIR 1940 Lah 164. I find that the High Court of Calcutta has also taken the same view. In the case of Samaresh Chakravorti v. Jalpaiguri Banking and Trading Corporation Ltd. : AIR1931Cal168 it was held that an application for setting aside a decree passed in a suit in which the defendant concerned was a lunatic, was maintainable. This view taken by their Lordships was based on the provisions of Section 151 of the Code of Civil Procedure, and it appears that the effect of Order 32, Rule 5, Sub-rule (2) was not considered.
Nevertheless their Lordships did take the view in that said case that an application of this nature was maintainable. In my opinion such an application, if not strictly covered by Order 32, Rule 5 of the Code, is maintainable under Section 151 of the Code of Civil Procedure. That being so, I am of the opinion that this contention of the learned Advocate for the petitioner must fail.
7. On the other ground urged before me, viz. that there has been complete misappreciation of the evidence on record, I am equally of the opinion that there is no substance in this contention. It appears that before the trial court two medical persons were examined and the decision of the learned Munsiff is based on their opinion.
The learned Advocate for the petitioner contended before me that there are other materials to show that the 1st Respondent could not have been a lunatic. The learned Munsiff, it appears from his judgment, has considered all the materials which were before him and has come to his conclusion on the question which is a pure question of fact. I see no reason to interfere with the said decision.
8. The result, therefore, is this petition fails and is dismissed with costs.
9. Petition dismissed.