Gangadhara Rao, J.
1. The plaintiff. Nedduri Konda Reddy, is the petitioner. He filed the suit. O. S. No. 68/1975 against the defendant. Maddirala Chennaiah, for a specific performance on the foot of an agreement of sale. The defendant was set ex parte. Then he filed an Interlocutory Application to set aside the ex parte decree with a petition to condone the delay and it is pending. While so. his wife, Yogamnia filed a petition under Order 32. Rule 3 C. P. C. to appoint her as the guardian of the defendant on the around that the defendant was suffering from congenital mental Infirmity and now he had become completely demented, incapable of taking care of his interests. The plaintiff filed a counter stating that the defendant was not mentally infirm, he had received summons in the suit, filed an application to set aside the ex parte decree, and the present application was filed only to defeat the decree and the execution proceedings. The learned Subordinate Judge, Markapur, allowed the application holding that the defendant was incapable of protecting his interests by reason of his mental infirmity and appointed his wife to be the guardian ad litem. Questioning that Order the plaintiff has filed this revision.
2. The learned counsel for the petitioner submitted that Order 32. Rule 15 C. P. C., as amended, by Act No. 104 of 1976. has no application, for the suit was filed before the amendment came into force, that under Order 32. Rule 15 C. P. C., before amendment, the Court had power to appoint a guardian only in the beginning when the defendant appears in the suit, but not afterwards, and even otherwise, in the present case, the lower court did not properly conduct the enquiry before coming to the conclusion that the defendant was incapable of protecting his interests due to mental infirmity.
3. Order 32. Rule 15 C. P. C. as it stands amended by the Amending Act No. 104 of 1976 provides, that Rules 1 to 14 (except Rule 2 (a)) shall so far as may be, apply to persons adjudged before or during the pendency of the suit to be of unsound mind and shall also apply to persons who, though not so adjudged, are found by the Court on enquiry to be incapable, by reason of any mental infirmity of protecting their interests when suing or being sued Section 97(2)(v) C. P. C. says that Rules 2 (a), 3 (a) and 15 of Order 32 of the First Schedule as amended or, as the case may be, substituted by Section 79 of the Amending Act shall not apply to a suit pending at the commencement of the said Section 79 and every such suit shall be dealt with and disposed ofas if the said Section 79 had not come into force. The Amendment Act came into force with effect from 1st February. 1977. The suit was filed in 1975. Therefore. I agree with the learned counsel for the petitioner that Order 32. Rule 15 C. P. C., as amended, has no application. It is only the unamended provision that is applicable. The learned counsel for the respondent has also fairly conceded this position.
4. Order 32. Rule 15 C. P. C., before amendment read as follows :--
'The provisions contained in Rules 1 to 14, other than Rule 2 (a), so far as they are applicable, shall extend to persons adjudged to be of unsound mind and to persons who though not so adjudged are found by the Court on enquiry by reason of unsoundness of mind or mental infirmity to be incapable of protecting their interests when suing or being sued.'
In view of this rule. Rules 1 to 14, extent Rule 2 (a) also apply to persons,who by reason of mental infirmity are incapable of protecting their interests when suing or being sued. But it must be so found by the Court by holding an enquiry. It applies both to the plaintiff who is suing, and to the defendant who is being sued. The words used are 'being sued' which connotes a continuous process. Further, a Buardian is appointed only for the purpose of conducting the proceedings in the suit. Rule 15 applies to persons adjudged to be of unsound mind which means, that they are adjudged before they are sued. It also applies to persons who are notso adjudged, but are found by the Court on enquiry to be of unsound mind or mentally infirm. It means, it can also be after the suit is filed and during the pendency of the suit. Thus on a reading of the rule, I am of the opinion that even if the Court sub-sequently; on enquiry, comes to the conclusion that the defendant is incapable, by reason of his mental infirmity, of protecting his interests, it can appoint a guardian. Otherwise, it will cause injustice to persons who are found to be of unsound mind or mentally infirm. In fact this is implicit when we read other rules.
5. Order 32. Rule 3 (3) C. P. C. provides that where the defendant is a minor, the Court on being satisfied by the fact of his minority, shall appoint a proper person to be guardian for the suit for the minor. In view of Rule 5 (2), every order made in a suit or on application before the Court in or by which the 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 discharged. Thus, if an order is made against a person who is mentally infirm, without being represented by a guardian, it has to be discharged. It is now well settled that a decree obtained against a lunatic, without appointment of a guardian, is a nullity.
6. In Kadada Reddi v. Narisi. (1001) ILR 24 Mad 504, the plaintiff in the suit against several defendants described the first defendant (a widow, and not a minor), as of unsound mind, and sued her as being represented by her mother and guardian. The first defendant had not been adjudged of unsound mind under the Lunacy (District Courts) Act XXXV of 1858: nor did it appear that the Court of First Instance had satisfied itself that first defendant was in fact, a lunatic or that it had approved of the guardian named and appointed by the plaintiff, as a fit and proper person. The suit was only contested by the second defendant. By Section 463 of the Civil P. C. (Act. XIV of 1882) the provisions contained in Sections 440 to 462. (which relate to the conduct of suits by and against minors), are directed to apply. mutatis mutandis, in the case of persons of unsound mind adjudged to be so under Act XXXV of 1858 or under any other law for the time being in force.The contention having been raised that the suit was bad and must be dismissed because the defendants had not been adjudged to be of unsound mind. Subrah-mania Ayvar and Davies JJ.. held :
'The effect of the Judge's ruling is to deny justice to persons who may be entitled to sue the lunatic, but who not being relatives, are unable to act the lunatic adjudged to be such under the Act XXXV of 1858. This difficulty does not appear to have been present to the mind of the Court in the case of Narayana v. Krishna ( (1885) ILR 8 Mad 214 at D. 2171. where it was assumed that any suitor could obtain an adjudication in lunacy as a matter of course, although it had been pointed out in the case quoted by the Judge (Subbayya v. Buthava. (1883) ILR 6 Mad 380). that only certain specified persons could move in the matter. In the absence then of any provision in the Code of Civil Procedure for the case of persons of unsound mind who have not been adjudged to be so under the Act, we must adopt the rule which prevails in English Courts and provide for the protection of the lunatic defendant by the appointment of a proper guardian ad litem the right of suit against the lunatic being unquestionable. A similar course has been followed by the Bombay and Allahabad High Courts (Venkatramana Rambhat v. Timapna Devappa, (1891) ILR 16 Bom 132, Nabbu Khan v. Sita. (1898) ILR 20 All 2 and Pransukhram v. Bai Ladkor, (1899) ILR 23 Bom 653)'.
This decision though under the provisions of the old Code, is an authority for the proposition that a guardian could be appointed for a defendant, who was of unsound mind during the pendency of the suit.
7. In Bhondu Mal v. Thoma Skinner, AIR 1937 All 29 it was observed that when the Court on enquiry finds a defendant incapable of protecting his interests, it can appoint a guardian even during the pendency of the suit.
8. The learned counsel for the petitioner relied upon Rami Reddi v. Papi Reddi. : AIR1963AP160 and D. Paoi Reddy v. D. Rami Reddi. : AIR1969AP362 in support of his contention. I do not find them relevant. They are not cases where during the pendency of the suit,petitions were filed to appoint a guardian for a defendant, who was of unsound mind. In the first case, a suit was filed by a plaintiff described as being of unsound mind and represented by his next friend. The second case is a sequel to the first case. It was held that the scope of enquiry under Order 32. Rule 15. C. P. C. had to be only limited for the procedural purpose, that is to say to (five proper representation to the plaintiff, if he is found to be insane or minor on the date when, the suit was instituted, and the enquiry was not expected to travel beyond that limited purpose, and any order passed under that rule does not finally decide as to whether the plaintiff was insane at the time when the transanctions attacked in the suit were entered into by him, and that is a matter which has to be gone into like any other issue in a regular trial and will have to be ultimately decided in the suit itself. Thus, in those cases, the contention which is now advanced by the learned counsel for the petitioner was never raised and decided. Hence. I hold that the Court is justified in appointing a guardian for the defendant, who is found to be mentally infirm on enquiry, during the pendency of the suit,
9. Lastly it was contended that the lower court did not properly conduct the enquiry. It was argued that the learned Sub-Judge did not give a finding that the defendant became mentally infirm and could not protect his interests, that the Sub-Judge who had questioned him did not record his impressions, his successor who passed the present order did not consider each question and answer, his impressions about it, that the doctor who examined the defendant did not identify the defendant when he was examined on commission and thus, it is not proved that the defendant was mentally infirm and, thereby, incapable of protecting his interests. I am not able to agree with these submissions Dr. P. T. Chandramouly. Psychiatrist and Deputy Superintendent. Government Mental Hospital, examined the defendant. M. Chennaiah. He issued the certificate. Ex. A-1 on 23rd March-1978. Subsequently, he was examined on commission as C. W. 1. The defendant was not produced before him when he was examined on Commission atHyderabad, He deposed that he issued the certificate to M. Chennaiah and he could identify him if shown to him. His impression was that Chennaiah was suffering from 'Hebephrenic' from birth, he is child-like, his impressions and emotions would be sub-normal, he was abnormal and could not have acted as a normal person right from his childhood. He further stated that Chennaiah was not in a position to realise what he was doing as his mental faculties are sub-normal and he requires somebody's help for his needs, that he was a dependent and he could be easily misled by some persuasion or bv some attraction, as his will power was below sub-normal. Thus, his evidence establishes that Chennaiah was not of sound mind.
10. P. W. 2, the advocate for the defendant was examined. He is an Advocate of 30 years' standing. He deposed that he advised Chennaiah to be examined by a Doctor of Mental hospital and Chennaiah was examined by Mr. Chan-dramouly (C. W. 1) and he was present then. In view of his evidence, the fact that C. W. 1 did not identify Chennaiah at the time of giving the evidence does not mean that C. W. 1 did not examine Chennaiah and that his evidence is false. It is true that the learned subordinate Judge, who put questions and elicited answers from Chennaiah did not record his impressions about Chennaiah. But the answer to question No. 6 shows that the name of the wife of Chennaiah was not correctly given. The judge, who has passed the order has stated that on one of the dates when Chennaiah was present in the Court, he was called, he entered the court-hall and sat on the ground and he appeared to be idiotic, and did not appear to be a normal person. In the light of this evidence, the learned Judge held that Chennaiah was incapable of protecting his interests by reason of his mental infirmity. I am not persuaded to take a different view of the evidence. On the facts of this case. I am not prepared to hold that the learned Judge did not bold a proper enquiry, or that his finding that Chennaiah was mentally infirm and incapable of protecting his interests is wrong.
11. In the result, I confirm the orderof the lower court and dismiss this revision, but in the circumstances of thecase. I direct each party to bear his costs in this revision.