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Judgment
Sudhanshu Dhulia, J
A suit for specific performance i.e. Civil Suit No. 89 of 2000 was filed by the plaintiffs/respondents. The suit was decreed by the learned Trial Court ex parte vide order dated 17.03.2004. Against the said ex parte decree, the defendants/ petitioners filed a first appeal being First Appeal No. 5 of 2006, which was also dismissed for non-prosecution vide order dated 20.02.2007. Subsequently, a restoration application was filed by the defendants/petitioners which was also dismissed vide order dated 17.12.2008. The defendants/petitioners thereafter filed a review application which was also dismissed by this Court vide order dated 31.07.2009. Ultimately the matter went to Hon'ble Apex Court in form of SLP, which was also dismissed by the Hon'ble Apex Court vide order dated 09.11.2009.
Finally the decree was put to execution. During execution, objections were raised by the present petitioners (who are the judgment debtor) under Section 47 of the CPC raising several grounds. The Executing Court heard the matter and framed the following issues:
"1. Whether the court had jurisdiction to pass the decree?
Whether the property in question is identifiable?
Whether in the suit giving rise to the said execution proceeding, the provisions of Order XXXII have been complied with?"
As regarding issue no. 1, the Executing Court recorded a finding that the trial court had jurisdiction to pass the decree. However, as regarding issue no. 2, the Executing Court held that the suit property was not identifiable. As regarding issue no. 3 as to whether provisions of Order XXXII of CPC have been complied, the learned Executing Court recorded a finding that out of the defendants, defendant nos. 7 and 8 at the relevant time were minor and no application was filed for appointment of their Guardian under Rule 3 Order XXXII of CPC and therefore the provisions of Order XXXII were not complied with. Consequently, the Executing Court dismissed the objections filed under Section 47 of the CPC vide order dated 15.04.2010.
Aggrieved, respondent nos. 1 & 2 preferred a revision being Civil Revision No. 36 of 2010. The revisional court allowed the revision vide order dated 18.02.2012. The revisional court came to the conclusion that the decree for specific performance was sought only against defendant nos. 1 & 2. In fact the plaintiffs have relinquished their claim as regarding defendant nos. 7 & 8. In any case, defendant no. 6, who was the mother and the next friend of defendant nos. 7 & 8 was already there as a party. The revisional court also placed reliance on Rule 3-A of Order XXXII of CPC. Rule 3-A of Order XXXII of CPC reads as under:-
"Order 32. Rule 3-A - Decree against minor not to be set aside unless prejudice has been caused to his interests. - (1) No decree passed against a minor shall be set aside merely on the ground that the next friend or guardian for the suit of the minor had an interest in the subject-matter of the suit adverse to that of the minor, but the fact that by reason of such adverse interest of the next friend or guardian for the suit, prejudice has been caused to the interests of the minor, shall be a ground for setting aside the decree.
(2) Nothing in this rule shall preclude the minor from obtaining any relief available under any law by reason of the misconduct or gross negligence on the part of the next friend or guardian for the suit resulting in prejudice to the interests of the minor."
Aggrieved, by the judgment and order passed by the revisional court dated 18.02.2012, the petitioners have filed the present writ petition.
It is no one's case in fact that any prejudice was caused to defendant nos. 7 & 8 by not moving an application for appointment of their guardian under Rule 3 of Order XXXII of CPC. In fact the decree for injunction was never put to execution. In any case it is a small lapse and it has been categorically held by the Hon'ble Apex Court in catena of judgments that a decree holder should not be deprived of the decree for minor lapses.
The order passed by the revisional court seems to be correct. Consequently, writ petition has got absolutely no merit. Writ petition fails and is hereby dismissed. Interim order dated 15.05.2012 is hereby vacated.