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Jadumani Naik and ors. Vs. Jyostna Naik and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 711 of 1980
Judge
Reported inAIR1986Ori28
ActsCode of Civil Procedure (CPC) , 1908 - Sections 11 and 115 - Order 32, Rule 7(1) and 7(1A)
AppellantJadumani Naik and ors.
RespondentJyostna Naik and ors.
Appellant AdvocateDevananda Misra, ;Deepak Misra and ;R.N. Naik, Advs.
Respondent AdvocateR.N. Sinha, ;S.N. Sinha and ;P.K. Routray, Advs.
DispositionRevision dismissed
Cases ReferredIn Rajeswararao v. Satyanarayana
Excerpt:
.....union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - the learned subordinate judge was therefore clearly right in holding that failure to file an affidavit with the application for leave under new sub-rule (ia) of rule 7 of order 32 vitiated the compromise and the minor on attaining majority could reopen the compromise so far as she was concerned......of order 32, rule 7 of the civil p. c. had not been complied with. she contended that new sub-rule (ia) of rule 7 of order 32 mandatorily required that an application for leave under sub-rule (1) should be accompanied by an affidavit of the next friend or guardian to the effect that the agreement or compromise proposed was in his opinion for the benefit of the minor. no such affidavit having been filed by the guardian, the application for leave was not in accordance with law and the permission granted was, therefore, invalid and the compromise was vitiated. the learned trial judge accepted the contention and recalled the compromise so far as plaintiff no. 3 was concerned.3. rule 7 of order 32 is designed to safeguard the interests of a minor during the pendency of a suit against.....
Judgment:
ORDER

R.C. Patnaik, J.

1. This revision is directed against an order passed by the trial Judge declaring a compromise invalid so far as plaintiff No. 3 was concerned.

2. In Title Suit No. 145 of 1977 plaintiffs 1 to 5 and defendants 7 to 11 entered into a compromise. Plaintiff Nos. 3 to 5 were minors. So, the guardian sought permission to sign the compromise petition on behalf of the minors. Permission having been granted, the guardian entered into the compromise. The compromise was recorded. Subsequently plaintiff No. 3 on attaining majority filed an application for recall of the compromise, so far as she was concerned, on the ground that the compromise had been fraudulently obtained and the requirements of Order 32, Rule 7 of the Civil P. C. had not been complied with. She contended that new Sub-rule (IA) of Rule 7 of Order 32 mandatorily required that an application for leave under Sub-rule (1) should be accompanied by an affidavit of the next friend or guardian to the effect that the agreement or compromise proposed was in his opinion for the benefit of the minor. No such affidavit having been filed by the guardian, the application for leave was not in accordance with law and the permission granted was, therefore, invalid and the compromise was vitiated. The learned trial Judge accepted the contention and recalled the compromise so far as plaintiff No. 3 was concerned.

3. Rule 7 of Order 32 is designed to safeguard the interests of a minor during the pendency of a suit against hostile, negligent or collusive acts of a guardian. It is therefore imperative that Rule 7 should be strictly complied with. Non-compliance of the mandatory provision wouldentitle the minor to avoid the compromise if he so chooses.

Sub-rule (IA) which was inserted by the Civil P. C (Amendment) Act, 1976 reads as hereunder :

'An application for leave under Sub-rule (I) shall be accompanied by an affidavit of the next friend or the guardian for the suit, as the case may be, and also, if the minor is represented by a pleader, by the certificate of the pleader, to the effect that the agreement or compromise proposed is, in his opinion, for the benefit of the minor.'

Even before the amendment, Madras, Kerala and Karnataka had introduced a similar provision. In Rajeswararao v. Satyanarayana, AIR 1946 Mad 377, the pleader guardian had not furnished the certificate as required by the Madras amendment (also required now by the new Sub-rule (IA)). It was held that absence of the certificate affected the compromise. The learned Subordinate Judge was therefore clearly right in holding that failure to file an affidavit with the application for leave under new Sub-rule (IA) of Rule 7 of Order 32 vitiated the compromise and the minor on attaining majority could reopen the compromise so far as she was concerned. I uphold the order.

4. There is another aspect of this revision. For non-compliance of the peremptory order, the revision was dismissed as against opposite party Nos. 4 and 5. Dismissal of the revision as against them rendered the revision incompetent as in the event of the revision being allowed, there would be two conflicting orders. On both the grounds the revision is, therefore, liable to be dismissed and so I dismiss. There would be no order as to costs.


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