Law: Civil Procedure Code (V of 1908)

Section: 15,1,3,4(2),15

Law: Mental Health Ordinance, 2001

Section: 29,32

(a) Civil Procedure Code (V of 1908)--- ----O.XXXII, R. 15---Mental Health Ordinance (VIII of 2001), Ss. 29 & 32---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S. 7(2)---Suit for recovery of finance---Defendant of unsound mind---Guardian in the suit, appointment of---Banking Court, powers of---Banking Court has the power to determine the unsoundness of mind or mental infirmity of a person on an inquiry under Order XXXII of the C.P.C. based on the evidence and appoint a guardian for the suit for the limited purpose of representation before the court of law, without first seeking an appointment of a guardian under the Mental Health Ordinance, 2001. Rule 15 of Order XXXII of C.P.C. provides that Rules 1 to 14 of Order XXXII shall apply to (i) persons adjudged to be of unsound mind and (ii) 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. The said Rule, therefore, acknowledges two categories of persons of unsound mind: one who is already adjudged by a court of competent authority as a person of unsound mind; and the other, who is not so adjudged but the court itself on inquiry finds that the person is of unsound mind. In both cases, the court is to appoint a guardian for the suit for such a person. In the first category, in view of the provisions of Rule 4(2) of Order XXXII of C.P.C. the court is to ordinarily appoint the same person as guardian for the suit who has been appointed the guardian under the Mental Health Ordinance, 2001 ("MHO"); while in the second, the court may appoint any suitable person who has no interest against the person of unsound mind. In the second category, the court cannot decline to appoint the guardian for the suit merely for the reason that the defendant has not been so adjudged under the MHO by the competent authority. Where no guardian has been appointed under the MHO, it does not preclude the Civil Court, or the Banking Court, to proceed and appoint a guardian for the suit under Order XXXII of C.P.C. so that the interest of a mentally disordered person is…

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