R.A Sharma, J.:— Petitioner filed suit No. 87 of 1986 in the Court of Munsif Hawaii, Aligarh for specific performance of agreement of sale alleged to have been executed in 1982 by Smt. Sushila Devi, respondent No. 5 to sell the land of her three minor sons, namely, respondents 2, 3 and 4 to this writ petition. In the suit all the three sons were impleaded as defendants Nos. 1, 2 and 3 and their mother, Smt. Sushila Devi was impleaded as defendant No. 4. As the two sons, namely, Devendra Kumar and Ajay Kumar were minors, they were impleaded as minor defendants and the third son, Rakesh Kumar was impleaded as major defendant. The suit was decreed ex-parte on 10.2.1989 by the trial Court. Petitioner thereafter applied for execution of the decree passed in the above suit. The minors filed an application under Order 9, Rule 13 of the CPC for setting aside the ex-parte decree passed in favour of the petitioner. This application was rejected by the trial court, against which they filed an appeal before the District Judge. The learned District Judge by order dated 27.10.1993 allowed the appeal, set aside the order as well as the judgment and decree passed by the trial court and directed the suit to be restored to its original number. It is against this order/judgment of the appellate court that this writ petition has been filed.
2. The lower appellate court has inter-alia held that no guardian was appointed by the trial court for the minors under Order 32 Rule 3 CPC; application 9-C for appointment of the guardian of the minors was neither supported by an affidavit nor did it contain the names of probable guardians in accordance with the rules as amended by this State and further no order was passed by the trial court on this application and the minors remained unrepresented; there is nothing on the record to show that the NAZARAT of the trial court has sent notices to the defendants and the notice sent by registered post to the minors bear the endorsement of refusal; even the mother of the minors was not represented and her alleged signatures on the VAKALATNAMA and application differ from each other and they do not appear to have been signed by her; notices sent to the minors by registered post were opened in the Court but they did not contain the copies of the plaint and the notices, as such, were incomplete; notices of the suit were not served on the minors as well as their mother.
3. With the aforesaid findings, appellate court has allowed the appeal and set aside the order of the trial court rejecting the application under Order 9, Rule 13 CPC filed by the minors and the suit was restored to its original number.
4. Learned counsel for this petitioner in support of the writ petition has made two submissions, namely, (i) ex-parte decree was executed and as such, the application under Order 9, Rule 13 CPC of the minors could not have been allowed; and (ii) the appellate court has failed to take into consideration the relevant factors, namely, appointment of guardian under Order 32 Rule 3 CPC is not mandatory; mother, who is a natural guardian, was a party as defendant and it was, as such, not necessary to appoint the guardian of the minors; and decree has become final against respondents Nos. 2 and 5.
5. An ex-parte decree passed against minors has no sanctity of law and even if it has been executed, it can be set aside by the appropriate court and suit can be restored to its original number for deciding it afresh.
6. The execution of the decree does not deprive the court of its power under Order 9, Rule 13 CPC to set it aside. If the conditions precedent laid down in the above provision are satisfied. The first submission, as such, lacks merit and has to be rejected.
7. Second submission also deserves the same fate. The provisions of Order 32, Rule 3 CPC are mandatory and it is obligatory on the court to appoint a proper person to be the guardian of the minor defendant for the suit. It is not disputed that no guardian was appointed by the trial court for the minors, who were impleaded as the defendants in the suit. In fact an application was moved for appointment of guardian but no order has been passed by the trial court on it. The judgment/decree of the trial court, thus, was nullity. Even if the mother is impleaded as one of the defendants along with her minor sons, the obligation still remains on the court to appoint a proper person to be the guardian of the minor defendants. It was open to the court to appoint the mother or any other proper person as the guardian.
8. Respondent No. 2 was himself a miner when the alleged agreement of sale was executed by his mother for the sale of land belonging to all the three brothers, but has become major by the time when the suit was filed. Respondent No. 5 was the mother of the minors. She was not having any claim to the land in dispute. She was impleaded in the suit as she has executed the agreement of sale. Order 9, Rule 13 CPC provides that if the court is satisfied that the notice were not duly served on the defendant or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, it can set aside the decree as against the defendant, who has made an application. However, the first proviso to Rule 13 itself provides that where the decree is of such a nature that it cannot be set aside against such defendant only court can set it aside against all the defendants. In the instant case the agreement of sale to sell the land of all the three sons including respondent No. 2 was executed by their mother. This case is, as such, covered under the first proviso of Rule 13 of Order 9 CPC and, as such, the Court was justified to set, aside the ex-parte decree as against all the defendants.
9. The writ petition lacks merit and is accordingly dismissed.
10. Petition Dismissed.