Ex. F.A. No. 75 of 2012. Case: Femi Joseph Vs The Federal Bank. High Court of Kerala (India)
| Case Number | Ex. F.A. No. 75 of 2012 |
| Counsel | For Appellant: T.N. Manoj, Adv. and For Respondents: Mohan Jacob George, P.V. Parvathi and Reena Thomas, Advs. |
| Judges | T. R. Ramachandran Nair and P. V. Asha, JJ. |
| Issue | Code of Civil Procedure, 1908 (CPC) - Order XXXII Rules 12, 12(1), 13, 3, 32 |
| Citation | AIR 2014 Ker 147, 2014 (3) KLT 287 |
| Judgement Date | June 10, 2014 |
| Court | High Court of Kerala (India) |
Judgment:
T. R. Ramachandran Nair, J.
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The appeal is filed by the petitioner in E.A.440/2012 in E.A.221/2012 in E.P.219/2007in O.S. No. 214/2006 on the file of the Sub Court at Irinjalakuda. She is the 2nd judgment debtor. The application was filed with a contention that, even though originally, the petitioner was a minor and was being represented by the guardian, after attaining majority on 28.5.2009, the same was not recorded, and therefore no separate notice was issued to her. Only when the Amin from the court came to effect the delivery, she came to know about the proceedings.
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The court below rejected the contentions of the appellant on the finding that, simply for the reason that her majority was not recorded, it cannot be said that the appellant was not aware of the execution proceedings. She had a duty to come on record on attaining majority and contest the proceedings. On the merits it was found that judgment debtors 1 to 3 had filed a joint statement of objection in execution proceedings. Therefore, it cannot be contended that the sale conducted is void. It was also noted that she was staying with her mother, the first judgment debtor, when she was a minor and it cannot be said that she was unaware of the execution proceedings.
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Heard both sides. Learned counsel for the appellant Sri. T.N. Manoj submitted, by referring to sub-rule 5 and 12 to R. 3 of O.XXXII C.P.C. that the factum of attainment of majority should have been recorded and notice should have been issued to the appellant
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Sub-rule 5 of O.XXXII R. 3 of Civil Procedure Code reads as follows:
"A person appointed under sub-rule (1) to be guardian for the suit for a minor shall, unless his appointment is terminated by retirement, removal or death, continue as such throughout all proceedings arising out of the suit including proceedings in any Appellate or Revisional Court and any proceedings in the execution of a decree".
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In fact the situation that has arisen here is not covered by the said rule. Then the question is whether Rule 12 will enable the appellant to advance the contention raised herein and we extract the said rule hereinbelow:-
Order 32, R. 12.--Course to be followed by minor plaintiff or applicant on attaining majority:- (1) "A minor plaintiff or a minor not a party to a suit on whose behalf an application is pending shall, on attaining majority, elect whether he will proceed with the suit or application.
(2) Where he elects to proceed with the suit...
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