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Hanmantram Radhakisan Vs. Shivnarayan Asuram - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberFirst Appeal No. 76 of 1916
Judge
Reported inAIR1918Bom123; (1918)20BOMLR970
AppellantHanmantram Radhakisan
RespondentShivnarayan Asuram
Excerpt:
.....plaintiff represented by his mother and guardian applying to court for decree in terms of award-decree passed without reference to o. xxxii, rule 7-decree valid.;a minor represented by his mother referred a dispute to arbitration out of court, after the award was published, the mother on behalf of her minor son applied to the court, under clause 20 of the second schedule of the civil procedure code, 1908, that the award be filed in court in order that a decree be passed in terms of it. the court accordingly passed a decree) but without certifying that it was for the benefit of the minor. the minor by his mother next filed a suit to have the decree set aside and contended that he was entitled to set aside the decree as there was no certificate under order xxxii, rule 7 of the..........upon it, neither party objecting, is not the court bound to sanction this agreement to have the award filed and a decree passed upon it, as for the benefit of the minor and so also certify the decree 1 and if the court fails to do so, is not the minor entitled to the protection of order xxxii, rule 7, civil procedure code ?2. it is necessary to read this question with the main facts in the suit, namely, that a reference to arbitration was made, or agreed to, by a mother on behalf of her minor son, and after the award was published, the mother on behalf of the son applied under clause 20 of the second schedule of the civil procedure code that the award should be filed in order that a decree might be passed upon it. the minor thus became, through his next friend, the applicant.3. if the.....
Judgment:

Basil Scott, C.J.

1. The question referred to the Full Bench is as follows:-When a dispute to which a minor is a party has been submitted to arbitration out of Court, and award made upon such submission has been brought into Court under clause 20 of the Second Schedule, Civil Procedure Code, and the Court has been asked to file it and thereafter pass a decree upon it, neither party objecting, is not the Court bound to sanction this agreement to have the award filed and a decree passed upon it, as for the benefit of the minor and so also certify the decree 1 and if the Court fails to do so, is not the minor entitled to the protection of Order XXXII, Rule 7, Civil Procedure Code ?

2. It is necessary to read this question with the main facts in the suit, namely, that a reference to arbitration was made, or agreed to, by a mother on behalf of her minor son, and after the award was published, the mother on behalf of the son applied under clause 20 of the Second Schedule of the Civil Procedure Code that the award should be filed in order that a decree might be passed upon it. The minor thus became, through his next friend, the applicant.

3. If the other party to the reference raises no objection to the application, and the award is filed and a decree passed in accordance with it, it does not appear to me that it can be said that there has been any agreement on behalf of the minor with reference to the suit in which the next friend is acting, although were the minor the defendant in such a suit as is numbered under clause 20 of the Second Schedule, it might be that a promise given on behalf of the minor to allow the award to be filed without opposition and a decree passed in accordance with it would be an agreement on behalf of the minor with reference to the suit. If a plaintiff gets everything that he applies for without objection by the defendant, it cannot be said that there is a decree by consent in the strict sense of that term. It is only a decree upon the submission of the defendant. The fact that the defendant does not object would not impose upon the Court the necessity of sanctioning anything as a condition precedent to filing the award and passing a decree upon it. The judgment of Mr. Justice Heaton, one of the referring Judges, puts the question of agreement as a matter of assumption of an undisputed fact. He says : 'where, as here, there was a suit to file the award followed after due notice to the defendants by a decree without contest, we must, I think, assume either a tacit or explicit agreement that the award should be filed. It may be urged that this is a question of fact; if so, we can determine it in this appeal which is a first appeal. But when this view, that there was a tacit or explicit agreement between the plaintiff and defendants that the award should be filed without contest, was mentioned in argument, there was no objection made, as I understand, to the assumption. I therefore assume that there was a tacit or explicit agreement.' That assumption, as it seems to me, comes to this that the defendant let it be known that he was not objecting to the filing of the award. I do not think that that amounts to an agreement or compromise on behalf of the minor plaintiff with reference to the suit within the meaning of Order XXXII, Rule 7. It also appears to me that there is no conflict between the two cases alluded to in the referring judgments. Mr. Justice Parsons and Mr. Justice Ranade say in Mahadev Balkrishna Kelkar v. Krishnabai (1898) P.J.609 'It is admitted that the sanction of the Court was not obtained either to the original agreement of reference to arbitration made by Vinayak Balkrishna Kelkar on behalf of his sons or to the agreement of the same person that the award should be filed or to the decree. It is, in our opinion, essantial under Section 462 of the Code that the leave of the Court should have been obtained to the agreement before a decree was passed on it.' That, as I understand, is the second agreement mentioned, namely, that the award should be filed. That would be an agreement on behalf of a minor defendant after the application had been numbered as a suit. In Vithaldas v. Dattaram I.L.R(1901). Bom. 298, : 3 Bom. L.R. 887 Sir Lawrence Jenkins delivering the judgment of the Court said: 'Can, then, the decision be supported on the ground that there has been no such leave as Section 462 contemplates We think not. That section obviously contemplates the existence of a guardian and a pending litigation; but here, when the agreement was entered into, there was neither a guardian for a suit nor a suit.' I infer from the judgment in the case of Mahadev Balkrishna Kelkar v. Krishnabai that the Court there was of opinion that the original agreement of reference before there had been any application numbered as a suit, would not require the leave of the Court.

4. The question referred must, I think, be answered in the negative.

Macleod, J.

5. The suit in which this reference has been made was filed by the plaintiff, a minor, to set aside the decree passed in his favour on an award. The agreement to refer was made on his behalf by his mother as his guardian, and the grounds on which he applied to have the decree set aside were that the accounts submitted to the arbitrators by his deceased father's partner were not correct, that his guardian was not in possession of true information at the time of the award, and that the award had been obtained by fraud. In the trial Court the suit was dismissed.

6. In first appeal, the eighth ground of appeal was as follows : 'The decree passed on the award contravenes the provisions of Order XXXII, Rule 7 of the Civil Procedure Code.' When the appeal came on for argument this point seems to have been raised as a preliminary point, , for if it was successful, there was no necessity to go into the question of fraud. The difficulty in doaling with the point arises from the fact that it was not taken at the hearing and there is therefore no evidence on the record of any agreement which had been entered into on behalf of the minor with reference to the suit by his next friend, and therefore, the agreement which has now been relied upon by the appellant had to be assumed from the facts already recorded.

7. Now the only agreement entered into by the minor's guardian was the agreement to refer. But it was argued for the appellant, as far as I can gather, that the agreement to refer implied a further agreement that when the award was made on the reference it was to be filed and a decree passed on it under para 20 of the Second Schedule. In the first place, I do not think that we ean infer from the agreement to refer the matter in dispute to arbitration, a further agreement to abide by the award, but even if we could, the agreement to refer was made before suit and any further agreement implied therein would also be before suit. All that appears on the record to have happened was that the award was made in favour of the minor. His guardian then filed an application under para 20 of the Second Schedule that the award should be filed. Sub-para (2) states that the application should be in writing and should be num-bered and registered as a suit between the applicant as plaintiff and the other parties as defendants. Sub-para (8) states that the Court should direct notice to be given to the parties to the arbitration, other than the applicant, requiring them to show cause, within a time specified, why the award should not be filed ; and under para 21, where the Court is satisfied that the matter has been referred to arbitration and that an award has been made thereon and where no ground such as is mentioned or referred to in paragraph 14 or paragraph 15 is proved, the Court shall order the award to be filed and shall proceed to pronounce judgment in accordance with the award. Notice in the ordinary course was issued, the application came on for hearing, and the defendant raised no objection to the award such as he might have raised under paragraph 14 or 15 of the Second Schedule. Aiter that it was the Court's duty to pronounce judgment in accordance with the award. Therefore it cannot be said that there had been any agreement by the guardian after the application to file the award had been made and the matter became a suit, which required the ganction of the Court under Order XXXII, Rule 7.

8. But even assuming that the defendant, after the application to file the award had been made, had promised that he would not take any objection under paragraphs 14 and 15 of the Second Schedule, it cannot be said that there was an agreement by the minor's guardian which would come within Rule 7 of Order XXXII. The mere fact that the defendant consented that a decree should be passed in accordance with the award, which involved no action on the part of the guardian, would not in any sense constitute an agreement by the guardian. Therefore dealing with the question which has been referred, I should be inclined to say that if the defendant in a suit by a minor plaintiff registered under para 20 of the Second Schedule, Civil Procedure Code, raises no objection to the award being filed and a decree passed thereon, there is no agreement by the guardian of the minor such as would come within the meaning of Order XXXII, Rule 7. Therefore I agree with what has been said by the learned Chief Justice. I may also add that there does not seem to me to be any conflict between the decisions referred to in the referring judgments, in Mahadev Balkrishna Kelkar v. Krishnabai (1896) P. J 609 and Vithaldas v. Dattaram I.L.R. (1901) 26 Bom. 298 : 3 Bom. L.R. 887. In the first case the minor was a defendant and his guardian had agreed to judgment against him, while in the latter the only agreement on the record was the agreement to refer which was made as in this case at a time when no suit was in existence. Mahadev Balkrishna Kelkar v. Krishnabai was referred to in the argument and the learned Judges evidently considered that it did not cover the case before them.

Shah, J.

9. I agree with the learned Chief Justice. I only desire to add that the question referred to us is rather in a general form, and that my answer must be taken to be limited to the question read with inference to the undisputed facts of the case.


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