107-NLR-NLR-V-44-SOMASUNDERAM-Appellant-and-UKKU-et-al.-Respondents.pdf
446
Somasunderam and Ukku.
1943Present: Hearrie J.
SOMASUNDERAM, Appellant, and UKKU et al., Respondents.
50—C. R. Matale, 5,567.
Minor—Decree against him unrepresented—Proceedings irregular—Applicationto set aside after majority—Civil Procedure Code, s. 480.
Where a decr.ee is entered against a minor who is unrepresented by aguardian he may move to have the proceedings set aside under section480 of the Civil Procedure Code even after he attains majority.
Muttumenika v. Muttumenika (18 N. L. R. 510) followed.
HE ARNE J.—Somasunderam and Ukku.
447
I
PPEAL from an order of the Commissioner of Requests, Matale.
J.E. M. Obeyesekere (with him H. W. Thambiah), for plaintiff, appellant.
F. Guneratne (with him S. R. Wijayatilake), for defendants,respondents.Cur. adv. vult.
August 23, 1943. Hearne J.—
The plaintiff sued three defendants on a promissory note for therecovery of Rs. 300 and judgment was entered bv default on September19, 1939. Thereafter execution was applied for and writ was issued.On September 11, 1942, subsequent to the issue of the writ, the thirddefendant applied to have all proceedings against her set aside on theground that she was a minor on the date of judgment. Her applicationwhich was made seven months after she had attained majority wasallowed and the plaintiff now appeals.
It was admitted for the purpose of this appeal that on the datejudgment was entered the third defendant was a minor and that nosteps had been taken to have a guardian ad litem appointed. In thesecircumstances, according to one view of the matter, all the proceedingsin so far as they affected the third defendant are a nullity. “ If onewho was a minor at the time of the suit ” I quote from the judgment ofthe Court in A. I. R. 1934 Madras 386 “ is sought to be made liable on adecree passed in that suit, it is open to him to plead that that decree wasa nullity and might be disregarded by him without instituting a suitto set aside that decree. This principle has been clearly laid down by thePrivy Council in Khiarajmul v. Daim If the present defendant wasreally no party to the former suit, it goes without saying that the decreepassed in that suit would be a nullity as against him and therefore wouldbe unenforceable ”.
A different view, however, has been taken by this Court. In MuttuMenika v. Muttu Menika' it was held that a judgment against a minorwho is unrepresented by a guardian “ is at . most an irregularityand that the judgment will stand as a valid adjudication untilreversed ….”.
What steps should a person take who seeks to get rid of a judgmentand decree passed at a time when he was a minor and in a suit in whichhe was not represented ? If he is to be regarded as being “ in the propersense of the term ” not a party—and it was so held by the Privy Councilin Rashid-Un-Nisa v. Muhammad Ismail Khan? he could file a separatesuit as was done in that case. But if he was a party and there is a validadjudication against him until reversed, he would at least be entitled tointervene for the purpose of effecting a reversal of the adjudication.Muttu Menika v. Muttu Menika (supra) indicates that he should proceedunder section 480 of the Civil Procedure Code or apply for restitutio inintegrum. Rupesinghe v. Fernando‘, says that section 480 C. P. C.“ should be availed of ” and in Thiagarajah v. Balasooriya et al.“ it washeld that no relief would be given by way of restitutio in a case in whichan application under section 480 provides an equally effective remedy.
1 {1905) 32 Cal. 296 at 312.1 (1915) IS A’. L. R. 510.3 31 All. 572.
1 (19JS) 20 X. L. R. 345.5 11 C. L. W. 91.
44/33
448
de Silva and Alahakoon
It is clear that, having regard to the particular view taken by thisCourt, the ordinary remedy has been held to be an application undersection 480. It was under this section that the third defendant moved.But counsel for the appellant has argued that the section is inapplicable,at any'rate in so far as the setting aside of a decree is concerned, for thereason that, while it enacts that “ every order made …. may bedischarged ”, an order means “ the formal expression of any decisionwhich is not a decree ”. A decree therefore cannot be discharged. Thisargument appears to run counter to the decisions of this Court whichbind me and all I need say, even if those decisions refer to judgmentsand not to decrees, is this. A decree—and it is the inviolability of adecree, if section 480 is employed, that has been urged—merely givesformal expression to the order contained in the judgment (section 188)and if that order is set aside the appellant may still retain the emptyshell of a decree for what it is worth to him !
a
It was also argued that a minor may move under section 480 whilehe is still a minor and, referring to 14 C. L. W. 91 ^ a. lunatic may do thesame while he is still a lunatic, but a minor must resort to restitutio or,at any rate, is precluded from moving under section 480 once, as in thepresent case, he has attained majority. The same position, it is argued,applies to a lunatic after he has regained his sanity and has ceased to be alunatic. The authorities which I have cited deal with the problem ingeneral terms and draw no distinction between a minor and an erstwhileminor seeking relief in respect of a judgment passed against him whilehe was still a minor.
The appeal is dismissed with costs.
Appeal dismissed.