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2003 DIGILAW 41 (KER)

Jolly v. Oriental Kuries Ltd.

2003-01-21

J.M.JAMES

body2003
Judgment :- 1. The 2nd Additional Sub Judge, Thrissur, as per the order dated 5.7.2000 in E.R 15/1999 in O.S. No. 793 of 1987, ordered attachment of Rs. 39.100/- from the decree schedule fixed deposit with the nationalized bank, made as directed by the Motor Accident Claims Tribunal. Thrissur, in O.P. (MV.) 1824/1985, for a period of 10 years, in the name of the judgment debtor C.V. Jolly, represented by his guardian, father, C.D. Varghese. The judgment debtor is challenging the said order of attachment through this revision. 2. The facts required for the disposal of this revision are that the decree holder conducted a Kuri. The judgment debtor was a prized subscriber. He executed a bond on 1.8.1983 for receiving the prize money. He defaulted repayment. Therefore, the suit was filed by the plaintiff and was decreed in favour of him. The judgment debtor, who was a medical representative in Baroda Pharma (P) Ltd., Thrissur, paid some amount. On 26.10.1983, he met with an accident, while travelling on his scooter, at Pongam, along Thrissur, Ernakulam national highway. He fell unconscious. Despite treatment, he could not regain consciousness, because of serious head injury, and he became a person of unsound mind. Accident claim petition was filed by the injured judgment debtor, through his father, who is the 4th defendant in the suit, and JD-4 in the E.P., the injured, JD-1, being a person of unsound mind. The Tribunal awarded an amount of Rs. 2,73,3007-. The entire amount, except Rs. 30,000/-, which was released for the expenses of the injured to the guardian, was fixed deposited with the bank for ten years. Interest on fixed deposit was directed to be withdrawn every after three months by the guardian and utilized by the guardian for the treatment and welfare of JD-1. Attachment was ordered from this fixed deposit. The first judgment debtor, represented by his father, the 4th respondent, therefore, filed this revision. Judgment debtors 2 and 3 are the sureties. 3. The suit was filed, originally, against JD-1 alone, on 30.9.1987. During the pendency of the suit, JD-4, the father of JD-1, filed written statement on 30.10.1999, stating at Para.9 that JD-1 was a lunatic because of an accident. The decree holder, therefore, filed LA. No. 927/1990, to appoint JD-4 as the guardian of JD-1, which was allowed on 8.3.1990. 3. The suit was filed, originally, against JD-1 alone, on 30.9.1987. During the pendency of the suit, JD-4, the father of JD-1, filed written statement on 30.10.1999, stating at Para.9 that JD-1 was a lunatic because of an accident. The decree holder, therefore, filed LA. No. 927/1990, to appoint JD-4 as the guardian of JD-1, which was allowed on 8.3.1990. After the impleading of guardian, an opportunity was given to file additional written statement. Accordingly, on 16.1.1991, JD-4 filed a statement, adopting the contentions of the written statement filed earlier by him on 30.10.1989. The lower court, after considering the contentions and the evidence adduced, decreed the suit as stated above. The decree holder filed execution petition thereafter, and attachment was ordered as per the impugned order, which is under challenge herein. 4. Heard learned counsel on either side. The contentions of the revision petitioners are, (1) as the suit was instituted against JD-1, a person of unsound mind, the decree passed against him is a nullity; (2) JD-4 was appointed as guardian only on 8.3.1990, and therefore, there was no one to represent JD-1 till then. Hence, the court had no jurisdiction during this period; and (3) the property of a lunatic person cannot be attached as he is to be treated as a minor. Learned counsel appearing for the respondent decree holder resisted all the above arguments. 5. The decision reported in Pankajaksha Kurup v. Fathima (1998 (1) KLT 668) was relied on by the revision petitioner, in which it was held relying on the decision in Ram Chandra v. Man Singh (AIR 1968 SC 954) that a decree against a lunatic without appointment of guardian is a nullity and is void and not merely voidable. This principle becomes applicable to the case of a lunatic in view of R.15 of O. XXXI of the Code of Civil Procedure. That was a case where a decree was obtained in the suit against the defendant when he was a lunatic, and the proceedings in the suit continued against the defendant without appointing a guardian. Whereas, in the case at hand, the suit was instituted against JD-1, the 1st defendant. After the filing of the written statement by JD-4, the plaintiff moved the LA. Whereas, in the case at hand, the suit was instituted against JD-1, the 1st defendant. After the filing of the written statement by JD-4, the plaintiff moved the LA. as stated above, for appointing JD-4 as the guardian of JD-1, as the plaintiff came to know of the alleged lunatic condition consequent on the accident of JD-1. The court allowed the same. Meanwhile, JD-4 filed Lunacy O.P. 17/1988 before the Addl. District Court, Parur to appoint him as the guardian of his son jolly under the Indian Lunacy Act. On 20.1.1989, the same was allowed dismissing the petition of the 1st counter petitioner Rajamma, the wife of the lunatic person. It was thereafter that the written statement was filed on 30.10.1989 by JD-4. R.1 to 14 of O.XXXII, except R.2A, which are dealing with the suit by or against minors, are also applicable in respect of persons of unsound mind, under R.15 CPC. R.3 of O. XXXII is dealing with the appointment of guardian in respect of a minor defendant by the court. It is true that the formal appointment was made in 1990, though the suit was filed in 1987. Learned counsel for the decree holder relied on Rangamal v. Minor Appasami (AIR 1973 Mad. 12), in which the court dealt with O. XXXII R.3, CPC and contended that where the interest of the minor has been adequately safeguarded by his natural father, representing him in the suit, the mere absence of a formal order appointing the father as guardian ad litem will not vitiate the decree against the minor. Similar view was also seen taken in Umar v. Mahabir Lal (AIR 1940 Pat. 59) that where the guardian for a minor defendant appeared in the suit and effectively represented him, although no formal order of appointment was made, the decree could not be said to be invalid against the minor unless prejudice was shown. The same was the view taken in Anandram v. Madholal (AIR 1960 Raj. 59) that where the guardian for a minor defendant appeared in the suit and effectively represented him, although no formal order of appointment was made, the decree could not be said to be invalid against the minor unless prejudice was shown. The same was the view taken in Anandram v. Madholal (AIR 1960 Raj. 189), where the court held that where the minor was effectively represented by his own natural guardian and father, where his interest did not conflict with that of the guardian and where no particular prejudice was alleged, it would not be proper for the court to set aside the decree in exercise of its inherent power, simply because a formal order regarding the appointment of guardian was not made by the court. In the case at hand, at the time of the execution of the Kuri bond by JD-1 with the decree holder, JD-1 was a sane person. He also remitted some premium against the amount due to the decree holder under the kuri transaction. Only thereafter he became insane due to the accident. At the time of filing of the suit, the decree holder did not know that JD-1 was an insane person, until the written statement was filed by JD-4, his father. Thus, in view of the principles of law discussed above, I hold that though no formal order was passed appointing a guardian from the date of institution of the suit till the appointment of JD-4 by the order in LA. 927 of 1990 dated 8.3.1990, no prejudice has been caused to the judgment debtors, as the father had effectively represented JD-1 in the suit. Hence, the argument of the learned counsel for the revision petitioners that the suit was null and void and that the court had no jurisdiction to try the suit till 1990 are unsustainable. The facts of Pankajaksha Kurup's case (cited supra) are different from that of the case at hand, and therefore, are inapplicable in this case. 6. Learned counsel appearing for the respondent decree holder also brought to my notice Rajkumar v. Rameshchand (1999 (8) SCC 29) and contended that even the provisions of S.52 to 55 of the Mental Health Act, 1987 will not be applicable where appropriate provisions of O. XXXII R.1 to 15 of Code of Civil Procedure have been resorted to in respect of a mentally ill person. I respectfully agree with this proposition of law. 7. The next point is whether the property of a lunatic could be attached. As stated above, the amount awarded by the Accident Claims Tribunal, except Rs. 30,000/-, was fixed deposited in the name of the insane person in a nationalized bank. The execution petition amount of Rs. 39,100/- was attached from the said fixed deposit amount. Learned counsel relied on Bhanabhai v. Chottabhai (ILR 22 Bom. 961 at 963) to urge that the property of a lunatic can be attached. It was a case where the decree holder obtained an exparte decree and in the execution petition a show cause notice was issued to the judgment debtor why he should not be committed to jail. The wife of the judgment debtor appeared and stated that her husband has been adjudged as a lunatic, and thereafter, unable to pay the decree amount. The Subordinate Judge, thereafter, dismissed the application on the ground that a lunatic cannot be arrested and incarcerated. The High Court found that the exparte decree itself was obtained by the decree holder concealing the fact of lunacy of the judgment debtor, and therefore, the court would not be disposed to assist the decree holder in executing the said decree by arresting the judgment debtor. However, the court observed that "if there is any property of the lunatic in the hands of his managers and guardians, he could proceed against that". In the case at hand, as stated above, the judgment debtor had remitted premium towards the amount due to the decree holder consequent on the kuri bond executed by him before he met with the accident. The decree was passed for the balance amount due to the decree holder. A guardian has been appointed by a competent court of law to manage the properties, the fixed deposit amount in the name of the lunatic. I find no legal hurdle in attaching the said property in execution of the decree, against the judgment debtor, who is a lunatic, but defended by the guardian appointed by a competent court of law. Therefore, the argument of the learned counsel that the property of the lunatic cannot be attached is rejected. 8. I find no legal hurdle in attaching the said property in execution of the decree, against the judgment debtor, who is a lunatic, but defended by the guardian appointed by a competent court of law. Therefore, the argument of the learned counsel that the property of the lunatic cannot be attached is rejected. 8. While allowing O.P. (Lunacy) 17 of 1988, the learned Additional District Judge, Parur, after appointing JD-4 as guardian, stated that JD-4 can spend the amount only with the sanction and under the orders of that court, for which he has to move that court. As this point has not been raised before me, I am not dealing with that aspect. In view of the above discussion, the C.R.P. is without any merit and is dismissed.