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1. This is a petition under Section 115 of the Civil Procedure Code, to revise the order of the learned Subordinate Judge Nellore, on I. A. No. 449 of 1959 in O.S. No, 73 of 1959 on his file. That application was filed under Order 32, Rule 15 of the Code of Civil Procedure to adjudge that the plaintiff is of unsound mind, and as such incapable of protecting his interests, and to appoint his daughter, Pelluru Rangamrna, as his next friend.

2. The relevant facts may briefly be stated. O. S. No. 73 of 1959 was filed by one Duvvuri Rami Reddi, Who was described as being of unsound mind, and represented by next friend and daughter, Pelluru Rangamma, for a partition of the properties set out in Schedules A to E into two equal shares, and allotment of one such share to the plaintiff, and for future profits and other reliefs.

15. The legal position may now be considered. Order XXXII Rule 15 of the Civil Procedure Code, is as follows :

"The provisions contained in Rules 1 fo 14, so far as they are applicable, shall extend to persons adjudged to be of unsound mind, and to persons who though not so adjudged are found by the Court on inquiry, by reason of unsoundness of mind or mental infirmity, to be incapable of protecting their interests when suing or being sued".

16. In Ramanathan Chettiar v. Somasundararn AIR 1941 Mad 505 an application under Order XXXII, Rule 15 C. P. C. for the appointment of a guardian ad litem was filed on the ground that the defendant became mentally infirm subsequent to the institution of the suit. The trial Court, instead of holding a regular judicial enquiry contemplated under Rule 15, thought that it was sufficient to rely on the previous history of the litigation, and on the opinion it formed after looking at the defendant, and eliciting answers to some questions. The opportunity to adduce medical evidence was not given on the ground that the production of medical certificate would not advance the case any further. Pandrang Rao, J., held that there was no enquiry of the kind contemplated by law, and that the order must be deemed to be one in the irregular exercise of his jurisdiction. It was pointed out that, if the weakness of intellect is very great, and such as to make the party incapable of protecting his interests, he would come within the protection given by Order XXXII, Rule 15. The learned Judge held that in the absence of a record of the questions and answers, it was impossible for the Court of revision to decide whether the conclusion arrived at on that particular aspect was justifiable and that the enquiry was unjudicial and unsatisfactory. I respectfully agree with this decision of the learned Judge.

19. In Periaswami Goundan, in re , Ramaswami, J., reviewing the earlier cases held, that while the old section of the C. P. C. was applicable to persons of "unsound mind" the present rule (Order XXXII, Rule 15) applies to persons suffering from any mental infirmity in consequence of which he is incapable of protecting his own interests, and that a person who is not of unsound mind may yet be mentally infirm within the meaning of Rule 15 and relied on, . Following the decision in Nanak Chand v. Banarsi Das, AIR 1930 Lah 425, the learned Judge held that a deaf mute, who has been leading a family life with his wife and children and eaking his livelihood by grazing cattle, but who could not be understood by ordinary persons who are unacquainted with him, and not capable of understanding such persons is governed by Order XXXII, Rule 15, and that a next friend should be appointed for him. It was observed by the learned Judge that if really he is mentally infirm, and a next friend or guardian is not appointed even by mistake, the decree is void.

21. In Balakrishnan v. Balachandran, (1956) 1 Mad LJ 459, Panchapakesa Ayyar, J., referred to, AIR 1941 Mad 505, and AIR 1949 Mad 292 and laid down that Order XXXII, Rule 15 C. P. C. is intended to ensure that no man is adjudged a lunatic without proper enquiry, and that the Court should hold a judicial inquiry and it may seek the assistance of medical experts. It was pointed out that the only safe course to adopt regarding the lunatics is to follow strictly the procedure prescribed in Order XXXII, Rule 15, Civil Procedure Code, and that if the precaution of a judicial inquiry is not observed, a man cannot be declared to be a lunatic., and a guardian appointed for him on that basis. A decree passed against a defendant in such a case owing to the guardian not putting up proper cr sufficient defence must be considered to be an ex parte decree, and must be set aside. At page 461, the learned Judge observed :