Introduction to a Decree
It is very important to know the definition of “decree” because the right of first appeal and second appeal is determined by reference to it only. Every adjudication of a court of law would be either “decree” or “order” but it cannot be both. Whether the adjudication, in any case, is a decree or order must be tested not by reference to general principles but by the expression of the code of civil procedure, 1908, construed in its plain and obvious sense.
Section 2(2) of the Code of Civil Procedure, 1908 defines decree as “a formal expression of an adjudication which so far as regards the quote expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final”.
Minor as per Law
According to section 3 of the majority act of 1975, a minor is a person who has not attained the age of 18 years. But in the case of a minor for whose property a guardian or a next friend has been appointed by a court, or whose property is under the superintendence of a court of words, the age of majority is 21 years
Procedure Of Suits To Which Minor Or Lunatics Are Parties]
Order XXXII of the Code of Civil Procedure, 1908 prescribes the procedure of suits to which minors or persons of unsound minds are parties. The reason for the enactment of Order XXXII is solely to ensure that minors’ & lunatics’ interests must be efficiently protected and to make sure that they are represented in a suit or proceeding by a person who is qualified to act as such. A minor as per law is considered to be a person who does not possess adequate diligence and intelligence to determine good and bad for himself/herself and therefore he/she lacks the wisdom for correct judgement. Considering the same the law will, as a general principle, would take into account all the cats of the minor and would not let him/her do anything which is harmful to his interests. Thus, a decree passed in favor of a minor/lunatic without the appointment of a guardian is not a nullity, but a decree passed against a minor/lunatic without the appointment of a guardian is a nullity.
Suit by Minor
Rule 1 of Order XXXII of the Code of Civil Procedure, 1908 states that every suit by a minor is to be instituted in his name by a person who in such suit is to be called the next friend of the minor because no proceeding can be taken by a minor without a next friend on account of his supposed want of discretion and his inability to bind himself and make himself liable for the cost. It is, therefore, necessary that has an interest should be protected by an adult. But neither the next friend nor the guardian is a party to the suit.
Rule 2 of Order XXXII of the Code of Civil Procedure, 1908 then lays down that is suit instituted by on behalf of a minor with the next friend, the defendant may apply to have the plaint taken off the file with cost to be paid by the pleader or person by whom it was presented. On such an application the court may make such order as it deems fit after giving notice to the other side and after considering the objections.
Suit Against Minor
Where a suit is instituted against the minor, the court should appoint a guardian and the guardian is called “guardian adlitem” for such minor. Once such “guardian adlitem” has been appointed then his appointment cannot be terminated till the proceedings are going on except if such guardian has retired or has died.
What Are The Qualification To Be Appointed As Guardian Or Next Friend Of Minor
Any person can be appointed as the next friend or “guardian adlitem” of a minor, if:
- He is of sound mind.
- He is himself not a minor.
- He does not have conflicting interests with respect to the interests of the minor.
- He is not the depositing party.
- No other person has already been appointed as the guardian of such a minor by a competent authority unless the court feels that the minor’s welfare demands that another person should be appointed.
- In the case of a “guardian adlitem”, the guardian has consented to act as such in writing.
In case there is no person who can act as “guardian adlitem” to the minor and can represent the interests of the minor in the suit then, the Court can appoint any of its officers for the aforementioned purpose.
Powers And Duties Of The Guardian Or The Death Of The Guardian Or The Next Friend
All applications to the court on behalf of the minor are to be made by the next friend or the guardian and the next friend of the guardian, as the case may be. If a court passes any order in a suit involving a minor, without the minor being represented by a next friend or guardian, the order can be discharged. In such cases, if the pleader (who obtained the Court’s order) knows, or might reasonably have known about the person being a minor then, he is also liable to pay the costs involved.
It is then provided that without the Court’s leave, a next friend or guardian cannot receive any money or other movable property on the minors’ behalf:
- Before passing of the decree or order if the guardian goes for a compromise; or
- Through a decree or order which is passed in the favour of the minor.
While giving such leave, the court may also require the next friend or guardian to give sufficient security to protect and ensure its proper application, especially when such a person had not been appointed as the guardian of the minor by a competent authority. Such security may, however, be dispensed with when such 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 family; or
- Is the parent of the minor.
Under rule 7 of Order XXXII of the Code of Civil Procedure, 1908, the next friend or guardian cannot, without the express leave of the court cannot come into an agreement or make a compromise on behalf of the minor with respect to the suit in which he is acting as the guardian to the minor. Such leave of the court is to be obtained on an application supported by an affidavit of the next friend or guardian, as also a certificate of the pleader if any, that the proposed agreement or compromise is for the minor’s benefit.
What Are The Cause Of Retirement, Removal Or Death Of Guardian On Next Friend
A next friend or guardian of a minor cannot retire unless he has named a person who in his place would substitute him and act as a guardian to the minor regarding the suits. The court may remove a next friend or guardian of a minor if it is satisfied that:
- He has conflicting interests with that of the minor.
- He is so connected with the opposite party that it may be possible that he would not be able to fully dedicate himself to protect the interests of the minor.
- He does not discharge his duty.
- While the suit is still pending and the guardian leaves India and settles abroad.
- There is any other sufficiently justifiable cause.
When the guardian or the next friend wishes to retire and remove himself from being the guardian to the minor or if he fails to perform his duties or if the Court finds any other justifiable cause for his removal then the Court may allow the next friend or the guardian to do so and may also appoint a new next friend or guardian.
In the case of Naresh vs Dauja1, wherein a minor defendant was represented by “guardian adlitem”, facts of the death of the guardian was not brought to the notice of the court, no new guardian was appointed, counsel contended to represent the minor till the decree was passed. It was held that no prejudice was caused to minors nearly because of the death of the guardian and non-appointment of a new “guardian adlitem”. It was further said by the court that such irregularity will not render entire proceedings void ab initio.
What Happens When A Decree Is Passed Against A Minor?
If any decree is passed against a minor then it shall not be set aside only on the ground that the next friend or the guardian had conflicting interests to that of the minor. It has to be proved that such conflicting interests caused prejudice to the interests of the minor. In totality, this ground would be right for setting aside the decree.
In case of a decree against a minor, the minor can file a suit to set aside the decree if there is gross negligence on the part of his next friend. In Talluri Venkata Seshayya vs Thadikonda Kotiswara Rao2, the Privy Council gave the same judgment. The Supreme Court agreed with the said view in the case of Ashrafi Lal vs Koili3.
Order XXXII of the Code of Civil Procedure, 1908 deals with the provisions related to the filing of a suit for or against a minor or a lunatic. The rules which are applicable in the case of minors also apply to persons of unsound mind. The only exception is that rule 2A does not apply. Thus, in such suits, the next friend cannot be asked to give security for the costs incurred, or likely to be incurred, by the defendant.
- A.I.R. 2005 MP 45.
- A.I.R. 1973 P.C. 1.
- A.I.R. 1995 SC 1440.
Student, ILS Law College, Pune
Siddhant is an aspiring lawyer who is pursuing his final year of 3 years LL.B from ILS Pune. He is a diligent & meticulous person who possesses experience in both Corporate & Litigation sector and wishes to aware the general public regarding some crucial aspects of law in as simple language as possible. Siddhant is always willing to groom himself and prove to be a valuable asset to any organization he becomes a part of.