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Dilip Singh and ors. Vs. Khilan Singh - Court Judgment

LegalCrystal Citation
SubjectArbitration;Civil
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Appeal No. 70 of 1974
Judge
Reported inAIR1979MP117
ActsArbitration Act, 1940 - Sections 30
AppellantDilip Singh and ors.
RespondentKhilan Singh
Appellant AdvocateB.D. Gupta, Adv.
Respondent AdvocateD.K. Katare, Adv.
DispositionAppeal allowed
Cases Referred(Arura Vir Singh v. Punjab Samindare Bank Ltd.
Excerpt:
.....suit. it is now a well-settled principle that, if a decree is passed against a minor without appointment of a guardian the decree is a nullity and is void and not merely voidable. it is to be noted however, that thera may be cases in which, apart from the provisions of rules 89 and 90 the court may refuse to confirm a sale, as, for instance, where a sale held without giving notice to the judgment-debtor, or where the court is misled in fixing the reserve price or when there was no decree in existence at the time when the sale was held,'this court, thus, in that case clearly recognised that, if there be no decree in existence at the time when the sale is held, the sale can be ignored and need not be set aside under the provisions of rules 89 and 91, c......and second appellate courts on the ground that the decree against ram lal was a nullity and the sale held in execution of that decree was therefore, void. it appears from the judgment of the high court that, in that court, no attempt was made on behalf of the appellant to contend that the decree which was obtained against ram lal and in execution of which the house was sold was not null and void and was not nullity, on the face of it, the decree was passed in contravention of the provisions of order 32, rule 15 of the code of civil procedure. it has been found as a fact that ram lal was insane when suit no. 354 of 1939 was instituted as well as when the house was sold in execution of the decree passed in that suit. it is now a well-settled principle that, if a decree is passed against.....
Judgment:

H.G. Mishra, J.

1. This is an appeal under Section 39 of the Indian Arbitration Act, 1940 (hereinafter referred to as the Act) aggrieved by an order dated 30th July, 1974 refusing to set aside an award.

2. Exhaustive statement of facts is not necessary for purposes of decision of this appeal. The essential facts for the present purposes are as under:--

(i) There was an arbitration agreement followed by an award. Respondent Khilan Singh submitted an application under Section 14 of the Act for calling the award and making it a rule of the Court. Along with this application no application was made for appointment of guardian ad litem of the minor Dilip Singh, appellant (non-applicant No. 6 in the lower court) before the A. D. J. Vidisha on 5-3-1974. Appellants (non-applicants before the A.D.J.) submitted objections on 30th July. 1974. These objections have been dismissed as time-barred and thus in effect the learned A.D.J. refused to set aside the award and made it a rule of the Court. Hence this appeal.

3. In this appeal, Shri B. D. Gupta learned counsel for the appellants has contended that in absence of appointment of guardian ad litem of minor Dilip Singh, the impugned order is nullity and void ab initio. Shri K. N. Gupta, learned counsel for the respondent has argued in support of the impugned order.

4. After having heard the learned counsel for the parties, I am of the opinion that the appeal deserves to be allowed.

5. By virtue of Section 41 of the Act, the procedure prescribed for trial of suits had been made applicable to the proceedings under the Act. Section 41 of the Act runs as under:--

'41. Procedure and powers of Court.--Subject to the provisions of this Act, and of rules made thereunder:--

(a) the provisions of the Code of Civil Procedure, 1908, shall apply to all proceedings before the Court, and to all appeals, under this Act, and

(b) the Court shall have, for the purpose of, and, in relation to, arbitration proceedings the same powers of making orders in respect of any of the matter set out in the second Schedule as it has for the purpose of, and in relation to any proceeding before the Court;

Provided that nothing in Clause (b) shall be taken to prejudice any power which may be vested in arbitrator or umpire for making orders with respect to any of such matters.'

6. It is not disputed that no application was made by the respondent herein for appointment of guardian ad litem of minor Dilip Singh. As to the effect of an order being passed without appointment of guardian ad litem their Lordships of the Supreme Court in case reported in Ram Chandra Arya v. Man Singh, AIR 1968 SC 954 have observed as under (at p. 954):--

'3. As has been mentioned above, the suit was dismissed by the trial Court and that decision has been upheld by the first and second appellate Courts on the ground that the decree against Ram Lal was a nullity and the sale held in execution of that decree was therefore, void. It appears from the judgment of the High Court that, in that court, no attempt was made on behalf of the appellant to contend that the decree which was obtained against Ram Lal and in execution of which the house was sold was not null and void and was not nullity, on the face of it, the decree was passed in contravention of the provisions of Order 32, Rule 15 of the Code of Civil Procedure. It has been found as a fact that Ram Lal was insane when Suit No. 354 of 1939 was instituted as well as when the house was sold in execution of the decree passed in that suit. It is now a well-settled principle that, if a decree is passed against a minor without appointment of a guardian the decree is a nullity and is void and not merely voidable. This principle becomes applicable to the case of a lunatic in view of Rule 15 of Order 32 of the Code of Civil Procedure so that the decree obtained against Ram Lal was a decree which has to be treated as without jurisdiction and void. In these circumstances the sale held in execution of that decree must also be held to be void.

4. Learned counsel appearing on behalf of the appellant contended that this proposition should not be accepted by us in view of the decision of this Court in Janak Raj v. Gurdial Singh, (1967) 2 SCR 77 : (AIR 1967 SC 608). The decision of that case is however, not available to the case before us at all. In that case, a stranger to the suit was the auction-purchaser of the judgment-debtor's immovable property in execution of an ex parte money decree. Before the sale could be affirmed, the ex parte decree was set aside and the question arose whether the auction-purchaser was entitled to a confirmation of the sale under Order 21, Rule 92, C.P.C. The Court held that the sale should be confirmed. The law makes ample provision for the protection of the interest of the judgment-debtor, when his property is sold in execution. He can file an application for setting aside the sale under the provisions of Order 21, Rules 89 and 90, C.P.C. No such application was made and disallowed, the court has no choice but to confirm the sale. This principle can be of no assistance to the appellant in the present case, because in that case, when the sale was actually held, a valid ex parte decree did exist. The sale having been held in execution of a valid existing decree, was itself valid; and the only question that came up for decision was whether such a valid sale could be set aside otherwise than by resort to the provisions of Rules 89 and 90 Order 21, Civil Procedure Code. In the present case, the decree being a nullity, has to be treated as non est and consequently the sale when held was void ab initio. In such a case, there is no question of any party having to resort to the provisions of Rules 89 and 90 of Order 21, C. P. C. to have the sale set aside. Any claim based on a void sale can be resisted without having that sale set aside. The decision of this court in that case itself brings out this distinction by stating:

'It is to be noted however, that thera may be cases in which, apart from the provisions of Rules 89 and 90 the court may refuse to confirm a sale, as, for instance, where a sale held without giving notice to the judgment-debtor, or where the court is misled in fixing the reserve price or when there was no decree in existence at the time when the sale was held,' This Court, thus, in that case clearly recognised that, if there be no decree in existence at the time when the sale is held, the sale can be ignored and need not be set aside under the provisions of Rules 89 and 91, C. P. C. In the present case, as we have held, the decree passed against Ram Lal was void and has to be treated as non-existent and, consequently, the sale must be held to be nullity.'

The position of minor and insane persons is at par by virtue of Rule 15 of Order 32 which runs as under:-- '15. Rules 1 to 14 (except Rule 2A) to apply to persons of unsound mind. Rules 1 to 14 (except Rule 2A) 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 reasons of any mental infirmity, of protecting their interest when suing or being sued;'

7. Accordingly, the principles laid down in the case of Ram Chandra Arya, v. Man Singh (AIR 1968 SC 954) (supra) govern the present situation also. The impugned order, accordingly, is nullity and void ab initio having been passed without appointment of guardian ad litem of minor Dilip Singh.

8. Somewhat similar question cropped up before the Lahore High Court in a case where on an application by an arbitrator for filing of an award, no appointment of guardian-ad-litem was made of minor against whom award was made. It was held by Abdul Rashid, J. in the case reported in (Arura Vir Singh v. Punjab Samindare Bank Ltd., Lyallpur, AIR 1940 Lah 164) in which the law on the point has been laid down as under:

'The presentation of the application by the arbitrator to the Court for the filing of an award comes within the category of civil proceedings within the meaning of Section 141. Hence where an award is against a minor it is incumbent to make a prayer in such application for a person being appointed the guardian of the minor. Where no such prayer is made, the application and the orders thereon are nullity as against the minor and the minor can seek his remedy by an application under Order 32, Rule 5 and not necessarily by a separate suit.'

9. The interests of the other appellants are interwined with that of minor Dilip Singh and the impugned order proceeds on ground common to all and the same is of indivisible nature. Therefore, the entire order will fall down. Although in absence of appointment of a guardian-ad-litem, the impugned order is void-ab-initio qua Dilip Singh, yet the impugned order cannot be allowed to stand and has to be set aside as a whole.

10. Accordingly, the appeal is allowed, the impugned order is set aside and the trial Court will proceed with the appointment of guardian-ad-litem for minor Dilip Singh and thereafter proceed afresh in accordance with law when an application for the purpose is moved by the respondent. The record of the case be sent back within fifteen days from today. In view of the nature of the controversy, I make no order as to costs.


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