1. The plaintiff's father Supadu had passed two promissory notes in favour of defendant No. 1 in 1919, one for Rs. 500 and the other for Rs. 200. After Supadu's death in 1920, his brother Shenfadu passed a promissory note for Rs. 800 in favour of defendant No. 1 in 1922 in satisfaction of Supadu's promissory notes. In renewal of that promissory note the plaintiff's mother Zumkabai passed two promissory notes of Rs. 400 each in favour of defendant No. 1 in 1924, In 1928 Zumkabai, acting as the guardian of her minor son, the plaintiff, and defendant No. 1 referred the dispute regarding the promissory notes to arbitration, and the arbitrator gave his award on October 17, 1928. On the next day defendant No. 1 presented the award in Court to have it filed. His application to have the award filed was registered as suit No. 846 of 1928. On the same day the plaintiffs mother Zumkabai appeared in Court and gave her consent to the award being filed. A decree was accordingly passed in terms of the award. The present suit was filed by the plaintiff's maternal uncle, acting as his next friend, for a declaration that the decree in suit No. 846 of 1928 was not binding on the minor plaintiff on the grounds that there was no legal necessity for the original debt, that no previous sanction of the Court was obtained by the plaintiff's mother Zumkabai before giving her consent to the filing of the award and that the minor's interests were not properly safeguarded owing to gross negligence on the part of the minor's mother. Defendant No. 1 contended that the suit was not maintainable in its present form, that the minor's maternal uncle was not his proper guardian to file the suit and that no previous sanction of the Court was required to be taken by the minor's mother Zumkabai before giving her consent to the filing of the award. The trial Court upheld these contentions and dismissed the suit. In appeal the learned District Judge, relying upon the ruling in Mahadev Balkrishna Kelkar v. Krishnabai (1896) P.J. 609 held that the plaintiff's mother was bound to take the sanction of the Court under Order XXXII, Rule 7, of the Civil Procedure Code, before giving her consent to the filing of the award, and allowed the appeal. He declared that the decree in suit No. 846 of 1928 was not binding on the plaintiff and issued an injunction restraining defendant No. 1 from executing the decree against the plaintiff.
2. The only grounds on which the decree against the minor plaintiff in suit No. 846 of 1928 is sought to be set aside in this suit are the want of sanction of the Court to the consent given by the minor's mother to the filing of the award and her alleged gross negligence in protecting the minor's interests. It is not alleged in the plaint that the minor's mother acted fraudulently either in referring the dispute to the arbitrator or in giving her consent to the award. It is now well established by the ruling of the full bench in Krishnadas v. Vithoba (1938) 41 Bom. L.R. 59 that mere gross negligence, apart from fraud or collusion on the part of the next friend or guardian ad litem of a minor litigant, does not afford the basis of a suit to set aside a decree against him. All that is alleged against the minor's mother in the plaint is that she was grossly negligent. In the absence of any allegation of her fraud or her collusion with defendant No. 1, the award decree cannot be set aside even if it be assumed that she was grossly negligent and did not guard the minor's interests properly.
3. As regards the other ground, there is no allegation in the plaint that after the award was presented in Court by defendant No. 1 for being filed, there was any agreement between him and the minor's mother that she should not oppose the filing of the award, and that in pursuance of such an agreement she gave her consent to its being filed. Order XXXII, Rule 7, of the Civil Procedure Code, provides:
No next friend or guardian for the suit shall, without the leave of the Court, expressly recorded in the proceedings, enter into any agreement or compromise on behalf of a minor with reference to the suit in which he acts as next friend or guardian.
The very use of the words 'next friend or guardian for the suit' shows that the leave of the Court is necessary if an agreement is to be entered into or a compromise is to be effected on behalf of a minor in a pending suit or proceeding. If no suit or proceeding is pending, there cannot be any next friend or guardian for the suit for the minor. In this case all that the minor's mother did after defendant No. 1 presented his application in! Court to have the award filed was that she voluntarily appeared in Court and gave her consent to the award. It does not necessarily follow that this consent was given as a result of any agreement entered into by her with, defendant No. 1 after the application was presented by him in Court. It cannot be contended that the reference to arbitration required the sanction of any Court, because the reference was made out of Court and at that time no proceedings were pending in any Court. It is suggested that the agreement to refer to arbitration must have been accompanied by an agreement that neither of the parties to the reference should oppose the filing of the award in Court. There is no reason to assume that in every case of a reference to arbitration there is a simultaneous agreement that the filing of the award should not be opposed by any party to it. On the other hand, it is common experience that the party against whom the award is given often opposes it on some ground or other and it is not likely that before knowing what the award is going to be, a party will undertake not to oppose it. Even assuming that there was such an understanding between the plaintiff's mother and defendant No. 1, such an agreement would be before the award was presented in Court, and it cannot be contended that it should have been entered into with the sanction of any Court. It is only when an agreement is entered into after the award is presented in Court that there would be a Court to sanction or not to sanction it. Till then there would be no Court whose sanction could be sought. On behalf of the plaintiff reliance is placed mainly on the ruling in Mahadev Balkrishna Kelkar v. Krishnabai (1896) P.J. 609 In that case there was a reference to arbitration out of Court, and after the award was presented in Court for being filed, the minor defendants' guardian gave his consent to the filing of the award. It was held that the minors were not properly represented in the suit on the award, and the award decree could have been set aside on that ground alone. But Parsons and Ranade JJ. proceeded to consider also whether the award decree was bad for want of sanction of the Court. They observed ( p. 610 ):
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, essential 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.
From this it appears that there was an agreement entered into by the minors' guardian that the award should not be opposed, but should be allowed to be filed. The full facts held proved in that case do not appear in the judgment or in the report. It is obvious that unless such an agreement during the pendency of the suit was presumed or held proved, no sanction of the Court was necessary under Section 462, corresponding to the present Order XXXII, Rule 7, of the Civil Procedure Code. This case was referred to in Hanmantram Radhakison v. Shivnarayan I.L.R. (1918) Bom. 258 : 20. Bom. L.R. 970 and was distinguished. In that case the minor, through his guardian, was one of the parties to the reference to arbitration, and after the award was given by the arbitrator, it was the guardian who presented it in Court for being filed. The other party gave consent, and a decree was passed in terms of the award. It was held that as the minor's guardian himself was the plaintiff in the suit for the filing of the award, it could not be said that he had entered into any agreement after the suit was filed and that as he had done nothing after the filing of the suit there was no occasion for any sanction of the Court; whereas in the case of Mahadev Balkrishna Kelkar v. Krishnabai, the minors' guardian happened to be the defendant, and when he appeared and gave his consent, the suit was pending. Scott C. J. observed (p. 271 ):
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.
That is really the gist of the case. Unless it is held that an agreement was entered into by the minor's guardian during the pendency of the suit, the question of the consent of the Court does not arise. In Vithaldas v. Dattaram I.L.R. (1901) Bom. 298 : 3 Bom. L.R. 887 also, the same principle was followed. There too the application for the filing of the award was made by the minor's guardian, and it was held that no sanction of the Court was necessary. In fact this follows from the very wording of Order XXXII, Rule 7, of the Civil Procedure Code, and it cannot be inferred from the mere fact that the minor's guardian gave her consent to the filing of the award that she must have done so in pursuance of an agreement entered into by her after the application for the filing of the award was presented. In this case, although defendant No. 1 entered the witness-box, not a single question was put to him in cross-examination as to whether there was any such agreement between him and the minor plaintiff's mother. There was no evidence even to suggest that the plaintiff's mother met defendant No. 1 after he presented the award in Court for being filed. Had there been the slightest evidence to prove that there was any talk between them during the pendency of the suit, it would not have been far-fetched to infer that he had entered into an agreement with her that she should give her consent to the filing of the award. But in the absence of any such evidence, it is not fair to infer that such an agreement existed, from the mere fact that the minor plaintiff's mother voluntarily gave her consent to the filing of the award after it was presented in Court. It is not necessary that in every case in which an award is presented, its filing must be opposed in Court. If the arbitrator had acted fairly and was not guilty of any misconduct and if there was no ground on which the validity of the award could be challenged, the defendant would naturally not think it wise or proper to oppose it. From the failure to oppose the award it cannot be inferred that it must be due to any express or implied agreement between the parties. I, therefore, hold that in this case no sanction of the Court was required to be taken by the minor plaintiff's mother before putting in her written statement giving her consent to the filing of the award.
No other ground for setting aside the award-decree is urged.
4. I allow the appeal, set aside the decree of the lower appellate Court and restore that of the trial Court. The plaintiff shall pay the costs of defendant No. 1 throughout.