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Parkash Chand Vs. Harbans Singh - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberEx. Second Appeal No. 72 of 1949
Judge
Reported inAIR1952P& H110
ActsCode of Civil Procedure (CPC) , 1908 - Order 32, Rule 7
AppellantParkash Chand
RespondentHarbans Singh
Appellant Advocate M.R. Aggarwal, Adv.
Respondent Advocate Daljit Singh, Adv.
DispositionAppeal allowed
Cases ReferredNazir v. Dharam Pal
Excerpt:
.....& a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. .....agreed sum. it was admitted that in fact altogether rs. 1,185/- had been recovered from harbans singh in execution of the decree. the decree-holder pleaded that the compromise was not a valid one as the terms of order xxxii (32), rule 7, civil p. c. had not been complied with and the necessary sanction of the court for the compromise entered into on behalf of the minor had not been obtained. this contention was accepted by the executing court which accordingly dismissed the objections of the judgment-debtors. in the judgment-debtor's appeal, however, the learned district judge held that the compromise was binding on the minor and that he was not entitled to proceed any further against harbans singh, and the decree-holder has accordingly come to this court in second appeal.2. when the.....
Judgment:

1. This Execution Second Appeal has been referred by Harnam Singh, J. to a Division Bench because of an apparent conflict of authority on the point involved. It has arisen in the following circumstances. As long ago as 1934 Parkash Chand, then a minor suing through his father as his next friend, obtained a money decree for Rs. 1,575/- and costs jointly and severally against two judgment-debtors named Harbans Singh and Mal Singh. It seems that in March 1936 Parkash Chand's father who was still acting as his next friend in the execution proceedings entered into a sort of compromise with the two judgment-debtors, whereby he agreed to recover Rs. 930/- from each of them separately, and some instalments were fixed. In 1946 Parkash Chand, who had by that time become a major, took out execution proceedings against Harbans Singh judgment-debtor for the recovery of the amount of the decretal debt which still remained unpaid. Harbans Singh raised objections under Section 47, Civil P. C, pleading that under the terms of the corn-promise no further sum could be recovered from him, and in fact he claimed that he had already paid a larger sum than was due from him under the compromise and that he was entitled to the return of the amount he had paid in excess of the agreed sum. It was admitted that in fact altogether Rs. 1,185/- had been recovered from Harbans Singh in execution of the decree. The decree-holder pleaded that the compromise was not a valid one as the terms of Order XXXII (32), Rule 7, Civil P. C. had not been complied with and the necessary sanction of the Court for the compromise entered into on behalf of the minor had not been obtained. This contention was accepted by the executing Court which accordingly dismissed the objections of the judgment-debtors. In the judgment-debtor's appeal, however, the learned District Judge held that the compromise was binding on the minor and that he was not entitled to proceed any further against Harbans Singh, and the decree-holder has accordingly come to this Court in second appeal.

2. When the appeal came for hearing before Harnam Singh, J., he considered that the matter should be referred to a Division Bench because there was apparently a conflict between two decisions of the Lahore High Court and a Full Bench of the Madras High Court on the question whether Order XXXII (32), Rule 7 applied to execution proceedings. In 'Muthalak-kamal v. Narappa', 56 Mad 430, it has been definitely held by a Full Bench that Order XXXII (32), Rule 7, Civil P. C. applies to execution proceedings. The order is, however, a very brief one in which a number of cases are listed rather than discussed, but the decision is clear and definite. Moreover the same view has been expressed by other High Courts. In 'Lal Babu v. Rang Bahadur Singh', A I R (23) 1936 Pat 506. Rowland and Varma, JJ. held that the powers of a next friend acting for a minor in the course of a suit are not wider after the decree than before it and Order XXXII (32), Rule 7, or at any rate the principle embodied in it, is applicable to an agreement in execution proceedings. In Tulsiram Hoshiyarsingh v. Kevalram Sobha Ram', A I R (30) 1943 Nag 231, Digby, J., after reviewing the case law on the point held that Order XXXII (32), Rule 7 applies to execution proceedings, and therefore a compromise or adjustment of a decree to which a minor is a party requires the sanction of the Court, and in the same case it was held that when the mother of a minor acts as his guardian or next friend her powers are controlled by the provisions of Order XXXII (32), Rule 7, and therefore when she occupies the dual capacity of guardian and next friend of the minor she cannot rely on her position as guardian for power to compromise the suit without the leave of the Court. Although the circumstances in 'Kastori Singh v. Pati Ram', A I R (27) 1940 All 16, were somewhat different as the case related to an alleged compromise entered into by the next friend of a minor after the passing of the decree but before execution proceedings were started the views of Thom, C. J., with whom Ganga Nath, J. agreed are also relevant as set out in the following passage:

'It was maintained for the respondent that as the compromise had been concluded after the passing of the decree and before the execution application was presented, the provisions of Order 32, Rule 7 did not apply. Learned counsel for the respondent was unable to refer to any authority in support of this proposition. The provisions of Order 32, Rule 7 are applicable to miscelleneous proceedings in virtue of Section 141, Civil P. C. If for the protection of the minor it is essential to obtain the permission of the Court, for a compromise during the pendency of the suit, and during the pendency of the execution proceedings, in our opinion, it is just as essential in the interests of the minor that the Court's consent should be taken during the period between the passing of the decree and the execution proceedings.'

As a matter of fact it would seem that the conflict which was thought to exist between the decision of the Madras High Court and the decisions of the Lahore High Court referred to in the order of Harnam Singh, J., is more apparent than real. In the first of these cases, 'Bansi Dhar v. Muhammad Suleman', AIR (13) 1926 Lah 490, the only defect which there had been in certain execution proceedings ragarding the sale of some mortgaged property was apparently that the person who had represented a minor as guardian ad litem during the suit had not formally been appointed the minor's guardian ad litem in execution proceedings. Both the suit and the execution proceedings had been fully contested throughout, and the sale of the mortgaged property was challenged in a suit brought twenty-five years later. In these circumstances it was held by Shadi Lal, C. J., and Coldstream, J., that the provisions of Order XXXII (32), Civil P. C. relating to suits by or against minors have no direct application to proceedings in execution after the rights of the parties have merged in a valid decree, and the omission to appoint a guardian ad litem of a minor does not vitiate a sale in execution. There was no question whatever in that case of any compromise entered into on behalf of a minor. The other case referred to by Harnam Singh, J., in his order 'Nazir v. Dharam Pal' AIR (28) 1941 Lah 47, decided by Beckett, J. rather supports the decree-holder in this case, since while it was held that order XXXII (32) has no direct application to execution proceedings, so that the Courts which have to deal with such proceedings cannot be bound down by mere technicalities arising from the wording of a particular rule of that Order, the broad principles contained in the rules relating to suits can be applied to execution proceedings when they represent elementary principles as in the matter of res judicata. It was conceded by the learned counsel for the judgment-debtor that he could not cite any case referring to a compromise under Order XXXII (32), Rule 7 at all, and that in the only other cases which he could cite a similar view was taken that if not the mere technicalities, at any rate the basic principles contained in Order XXXII (32), did apply to execution proceedings, and it is surely a basic principle that any compromise entered into on behalf of a minor by a guardian ad litem or next friend must be placed specifically before the Court for consideration in the light that it is being entered into on behalf of a minor, and be sanctioned explicitly as being in the interests of the minor. The only order passed by the executing Court in this case was to place the compromise on record, and it is quite clear that the matter was not considered at all in the light of the provisions of Order XXXII (32) Rule 7. In the circumstances I am of the opinion that the correct view of the matter was taken by the executing Court, and I would accordingly accept the appeal and restore the order of the executing Court dismissing the objections of the judgment-debtor. I would, however, order that the parties bear their own costs in this appeal.

Khosla, J.

3. I agree.


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