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Judgment
K.R. MOHAPATRA, J.
Due to outbreak of COVID-19, this matter is taken up through Video Conferencing.
Heard Mr. Sanatan Das, learned counsel for the petitioners and Mr. S.C. Dash, learned counsel for the opp. Parties-SOUTHCO.
The petitioners in this writ petition pray for a direction to set aside the orders dated 18.06.2020, 03.09.2020 and 14.09.2020 (Annexure-3) passed by
learned Civil Judge (Senior Division), Aska in Execution Petition No. 8 of 2014.
In course of hearing, Mr. Das, learned counsel for the petitioners submits that he does not want to press the prayer in respect of order dated
14.09.2020, as such, this CMP is confined to orders dated 18.06.2020 and 03.09.2020. By order dated 18.06.2020, learned Civil Judge, while
exercising power under Order XXXII Rule-6(2) of the C.P.C., directed the petitioners-Decree Holders (D.Hrs.) to furnish security to receive 25% of
the decreetal amount by the next friend and by order dated 03.09.2020, he rejected an application filed by the petitioners-D.Hrs to dispense with
furnishing of security as directed vide order dated 18.06.2020.
Mr. Das, learned counsel for the petitioners submits that C.S. No. 51 of 2012 was filed by the plaintiffs-petitioners, who are two minors, namely,
Archana Sethi and Suchitra Sethi, being represented by their next friend, for a decree of compensation to the tune of Rs.4,30,000/- with interest @
12% per annum. Initially, the maternal grandfather, namely, Abhimanyu Sethy, was the next friend of the plaintiffs. The suit was allowed vide
judgment dated 28.01.2014 with the following direction:
“The suit of the plaintiffs be and the same is decreed on contest against the defendants, but without cost. The defendants are hereby directed to pay a
compensation of Rs.3,93,500/- (Rupees three lakh ninety three thousand five hundred) only with pendetelite and future interest @ 6% per annum from the date of
filing of the suit till actual payment is made within three months hence, failing which the plaintiffs are at liberty to realize the same through the process of the
Court. It is further ordered that out of the total compensation amount 75% of the money be deposited in any nationalized bank in the name of the plaintiffs till
they attain their majority.â€
The said judgment was challenged before the learned Addl. District Judge, Aska in RFA No. 86 of 2014, which was dismissed vide judgment dated
13.01.2020. Accordingly, the plaintiffs through their next friend initiated Execution Petition No. 8 of 2014 for realization of the decreetal amount. It is
submitted that the decreetal amount has already been deposited by the defendants-judgment debtors (J.Drs.). During pendency of the execution
proceeding, the maternal grandfather of the plaintiffs-D.Hrs. expired and one Sri Srikanta Sethi, who is the maternal uncle of the plaintiffs, has been
permitted vide order dated 17.03.2020 passed by learned Civil Judge (Senior Division), Aska (the Executing Court) to represent as next friend of the
minor D.Hrs.. It is submitted that the plaintiff no.2 is a blind child and the plaintiff no. 1 is prosecuting her studies. Thus, the D.Hrs. through their next
friend filed an application for release of 25% of the decreetal amount in their favour to be received by their next friend and the same was allowed by
learned Civil Judge with a condition of furnishing security to that effect in terms of Order XXXII Rule 6(2) of the C.P.C..
It is submitted by Mr. Das learned counsel that the petitioners are represented by their next friend appointed by the competent court of law. Thus,
the provision of Order XXXII Rule 6(2) C.P.C. has no application to this case and there is no difficulty in releasing 25% of the decreetal amount,
which will be received by the next friend on behalf of the minor D.Hrs. Learned Civil Judge without considering the same directed for furnishing of
security to receive 25% of the decreetal amount by his order dated 18.06.2020. Hence, the petitioners filed an application under Section 151 C.P.C.
with a prayer to dispense with furnishing such security stating that the next friend of the minor D.Hrs. namely, Sri Srikanta Sethi (their maternal
uncle), is a very poor person and is maintaining the minors with much difficulties. As such, he is not in a position to furnish security to receive the
amount and the same is also otherwise not required for release of 25% of the decreetal amount. But, said petition was also rejected by order dated
03.09.2020. Hence, this CMP has been filed.
Mr. Das, learned counsel relied upon the decision in the case of Bhagabat Sahu v. Parbat Samal, reported in (1982) 53 CLT 509, wherein it has
been held at paragraph-3 as follows:
“3. The question that is canvassed has two facets:â€
(i) Whether the legal representatives of the original defendant were really unrepresented and,
(ii) in case they, admittedly minors, went unrepresented, whether the decree was a nullity and could be ignored by the executing court.
I have already pointed out that when the original defendant died, the legal representatives were brought on record. The minor children were asked to be
represented by their mother, the natural guardian. The natural guardian received summons from the court and entered appearance. She also participated in the
final decree proceeding and even took steps before the Pleader-Commissioner but later chose not to appear in the proceedings and allowed the matter to get
concluded ex parte.
Order 32, R. 3 C.P.C. requires that where the defendant is a minor, the court, on being satisfied of the fact of minority, is to appoint a proper person to be
guardian for the suit for such minor. This provision was obviously applicable to the facts of this case. The court had done its duty in ensuring that the minor
children of the original defendant were appropriately represented by their natural guardian. If the final decree proceeding had been allowed to continue without
the legal representatives of the defendant being represented, possibly it would be a clear case of the decision being a nullity. It is open to a guardian representing
the interests of the minors after he or she is aware of the scope of the litigation while acting prudently not to contest the lis. This would be certainly a matter of
prudent management of the minors' interests and, therefore, a matter within the competence of the guardian. Once the defendants are appropriately impleaded
and represented, the duty under R. 2 of O. 33, C.P.C. would come to an end and the proceeding before the court must be taken to have been duly constituted. A
distinction must be drawn between a case where the minors are not adequately represented from the commencement and the proceeding at its inception, therefore,
is a nullity and a case where the minors are adequately represented and there is a duly constituted proceeding where the guardian acts for some time and then
omits to take steps.†(emphasis supplied)
Mr. Das, learned counsel for the petitioners, therefore, prays for setting aside the orders dated 18.06.2020 and 03.09.2020 (Annexure-3) and to
direct the learned Executing Court to release 25% of the decreetal amount without asking for any security.
Mr. S.C. Dash, learned counsel for the opposite parties submits that he has nothing to say with regard to release of the decreetal amount as the
opposite parties being the J.Drs. have already deposited the entire decreetal amount before the executing court.
In order to decide the issue with regard to applicability of Order XXXII Rule 6(2) of C.P.C. in the instant case, it will be profitable to refer to the
relevant provisions of the Code of Civil Procedure. Order XXXII Rule 6 deals with receipt of the decreetal amount under a decree or order by the
next friend or guardian for a minor, which read as follows:
“6. Receipt by next friend or guardian for the suit of property under decree for minor
1) A next friend or guardian for the suit shall not, without the leave of the Court, receive any money or other movable property on behalf of a minor either-
(a) by way of compromise before decree or order, or
(b) under a decree or order in favour of the minor.
(2) Where the next friend or guardian for the suit has not been appointed or declared by competent authority to be guardian of the property of the minor, or,
having been so appointed or declared, is under any disability known to the Court to receive the money or other movable property, the Court shall, if it grants him
leave to receive the property, require such security and give such directions as will, in its opinion, sufficiently protect the property from waste. and ensure its
proper application:
Provided that the Court may, for reasons to be recorded, dispense with such security while granting leave to the next friend or guardian for the suit to receive
money or other movable property under a decree or order where such next friend or guardian-
(a) is the manager of a Hindu undivided family and the decree or order relates to the property business of the family; or
(b) is the parent of the minor.â€
The provision under Rule 6 (2) of Order XXXII C.P.C. comes into play when court grants leave for release of money or other movable property
under a decree or order to a minor and no such next friend or guardian of the minor in the suit has been appointed or having been so appointed or
declared, is under any disability known to the court to receive the money or other movable property on behalf of any minor, then the court shall require
such security and give such direction as will, in its opinion sufficiently protect the property from waste and ensure its proper application. Proviso to
Sub-rule (2) makes it clear that the Court in its discretion may also dispense with such security, while granting leave to receive money or other
movable property under a decree or order under two circumstances, i.e. firstly, when the next friend or guardian is the manager of a Hindu undivided
family and the decree or order relates to the property or business of the said family or secondly, the next friend or guardian is the parent of the minor
concerned.
The object and purpose of representation of a minor-plaintiff by ‘next friend’ and appointment of a ‘guardian’ for a minor-defendant
is well discussed in the case of Nagaiah and another â€"v- Chowdamma (Dead) by Legal Representatives & another, reported in (2018) 2 SCC 504.
Relevant paragraphs for the purpose of just adjudication of this case are reproduced hereunder:
“10. A bare reading of Order XXXII Rule 1 of the CPC makes it amply clear that every suit by a minor shall be instituted in his name by a person who in such
suit shall be called the “next friend†of the minor. The next friend need not necessarily be a duly appointed guardian as specified under clause (b) of Section
4 of the Hindu Minority and Guardianship Act. “Next friend†acts for the benefit of the “minor†without being a regularly appointed guardian as per the
Hindu Minority and Guardianship Act. He acts as an officer of the court, especially appearing to look after the interests of a minor whom he represents in a
particular matter. The aforesaid provision authorises filing of the suit on behalf of the minor by a next friend. If a suit by minor is instituted without the next friend,
the plaint would be taken off the file as per Rule 2 of Order XXXII of the Code.
Order XXXII Rules 1 and 3 of the CPC together make a distinction between a next friend and a guardian ad litem; i.e., (a) where the suit is filed on behalf of a
minor, and (b) where the suit is filed against a minor. It was held that in case, where the suit is filed on behalf of the minor, no permission or leave of the court is
necessary for the next friend to institute the suit, whereas if the suit is filed against a minor, it is obligatory for the plaintiff to get the appropriate guardian ad
litem appointed by the court for such minor. A “guardian ad litem†is a special guardian appointed by a court in which a particular litigation is pending to
represent a minor/infant, etc. in that particular litigation and the status of guardian ad litem exists in that specific litigation in which appointment occurs.
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It is by now well settled and as per the provisions of Order XXXII of the Code that any person who is of sound mind, who has attained majority, who can
represent and protect the interest of the minor, who is a resident of India and whose interest is not adverse to that of the minor, may represent the minor as his next
friend. Such person who is representing the minor plaintiff as a next friend shall not be party to the same suit as defendant. Rules 6 and 7 of Order XXXII of the
Code specifically provide that the next friend or guardian in the suit shall not without the leave of the court receive any money or immovable property and shall
not without the leave of the court enter into any agreement or compromise. The rights and restrictions of the natural guardian provided under the Hindu
Guardianship Act do not conflict with the procedure for filing a suit by a next friend on behalf of the minor. Not only is there no express prohibition, but a reading
of Order XXXII of the Code would go to show that wherever the legislature thought it proper to restrict the right of the next friend, it has expressly provided for it
in Rules 6 and 7 of Order XXXII of the Code. Rule 9 of Order XXXII, apart from other factors, clarifies that where a next friend is not a guardian appointed or
declared by the authority competent in this behalf and an application is made by the guardian so appointed or declared who desires to be himself appointed in
the place of the next friend, the court shall remove the next friend unless it considers, for reasons to be recorded, that the guardian ought not to be appointed as
the next friend of the minor.â€
Hence, the provisions under sub-rule (2) of Order XXXII makes it crystal clear that if a next friend or guardian, as the case may be, is appointed
or declared by the competent Court, then no security will be required, when the Court grants leave to receive the property.
On perusal of the impugned order, it appears that learned Civil Judge directed the next friend to furnish security to receive the amount observing
that the next friend is not the guardian of the property of the minor. Thus, it appears that learned Civil Judge misconstrued the aforesaid provision and
got confused with the terms ‘next friend’ and ‘guardian’. It is made clear that a ‘next friend’ represents a minor plaintiff in a suit
(Order XXXII Rule 1 CPC), whereas the ‘guardian ad litem’ represents a minor defendant (Order XXXII Rule 3 C.P.C.).
When a next friend of minor-D.Hrs. has already been appointed, who is otherwise eligible to receive the money, the provision under Order XXXII
Rule (6) (2) C.P.C. ceases to operate.
Accordingly, this Court while setting aside the impugned orders under Annexure-3, directs learned Civil Judge (Senior Division), Aska to release
25% of the decreetal amount in favour of the next friend of the minor D.Hrs., namely, Sri Srikanta Sethi, the maternal uncle of the minor D.Hrs. on
proper identification by furnishing an indemnity bond to that effect expeditiously following due procedure of law.
In view of the aforesaid discussion made above, the petitioner, who is the next friend of minor D.Hrs., is at liberty to move an application to
receive the fixed deposit certificates, which are kept with the Nazir of the court of learned Civil Judge (Senior Division), Aska, on behalf of the minor-
D.Hrs.. In that event, learned Civil Judge shall do well to consider the same and pass a reasoned order in accordance with law.
With the aforesaid observation and direction, the CMP is disposed of.
Authenticated copy of this order downloaded from the website of this Court shall be treated at par with certified copy in the manner prescribed in
this Court’s Notice No.4587 dated 25.03.2020.