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Narpat Raj Vs. Babulal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Exe. First Appeal No. 23 of 1959
Judge
Reported inAIR1964Raj92
ActsCode of Civil Procedure (CPC) , 1908 - Sections 47 - Order 32, Rules 1, 2 and 7
AppellantNarpat Raj
RespondentBabulal and ors.
Appellant Advocate H.P. Gupta, Adv.
Respondent Advocate Magraj Bhansali, Adv.
Disposition Appeal allowed
Cases ReferredValchand v. Manekbai
Excerpt:
- - 3. at this stage we should like to state briefly the findings of the learned district judge, which led to the dismissal of the application of the appellant. on the point of the compromise not having been made in the interest of the minor, the learned judge seems to have entertained the view that as the compromise was made on behalf of the decree-holders by the grand-father of the appellant who also represented the latter's father dhan-patraj in the suit as well as the execution proceedings, (dhanpatraj being one of the two other decree-holders), there was a presumption that what was considered in the interest of the father was also in the interest of the minor. as wehave discussed above, the correct legal position isthat whatever defect there might have been in theprocedure adopted.....modi, j.1. this is an appeal by the decree-holder narpat raj in an execution matter and arises under the following circumstances.2. the appellant along with two others obtained a decree against the respondents babulal and others for rs. 30,000/- together with interest and costs on the 17th january, 1953, in a suit for recovery of mortgage-money. the case of the appellant was that he was a minor at that time and continued to be so until some time after the 9th january, 1956. on the date last-mentioned, this decree was compromised during the course of execution proceedings which had been commenced on an application of the decree-holders dated the 9th february, 1953, and this compromise was arrived at between sampat raj, (who it may incidentally be mentioned is the grandfather of the.....
Judgment:

Modi, J.

1. This is an appeal by the decree-holder Narpat Raj in an execution matter and arises under the following circumstances.

2. The appellant along with two others obtained a decree against the respondents Babulal and others for Rs. 30,000/- together with interest and costs on the 17th January, 1953, in a suit for recovery of mortgage-money. The case of the appellant was that he was a minor at that time and continued to be so until some time after the 9th January, 1956. On the date last-mentioned, this decree was compromised during the course of execution proceedings which had been commenced on an application of the decree-holders dated the 9th February, 1953, and this compromise was arrived at between Sampat Raj, (who it may incidentally be mentioned is the grandfather of the appellant) counsel for the decree-holders, and the judgment-debtors, and the whole decree was settled for a sum of Rs. 29500/- only. On the 3rd March, 1956, the respondents paid this amount to the said Sampat Raj as a result of which the execution application was dismissed in complete satisfaction of the decree by an order of the Court of the same date.

On the 2nd August, 1958, Narpat Raj appellant instituted a fresh execution application out of which the present appeal arises. His case was that he was a minor at the time the compromise came to be made and that the sanction of the Court had not been obtained to the compromise as required by Order 32, Rule 7 of the Code of Civil Procedure, and, further, that the total decretal claim amounted to much more than the sum for which the compromise was arrived at (the decree-holder puts it at Rs. 59,000/- odd) and, therefore, the compromise was prejudicial to his interests and this is how he filed a fresh application for execution on the 2nd August, 1958. In a note appended to his application he stated that he was bora on Bhadwa Vadi 14 of Section 1996 which corresponds to 12th September, 1939. Notices having been issued to the judgment-debtors of this application under Order 21 Rule 22 Civil Procedure Code, they objected to the executability of the decree on the appellant's application.

A number of objections were raised. Thus it was strenuously contended that the appellant was not a minor at the time of the suit or the passing of the final decree and that in any case he was not represented by a next friend at all material times with the result that he could not be rightly treated as a party to the suit or the decree. It was further contended that the decree had been compromised and Sampat Raj, grand-father of the appellant, who held a power on behalf of all the decree-holders had certified a complete adjustment of the decree to the execution Court a sum of Rs. 29,500/- having been paid to him and the execution proceedings were dismissed in complete satisfaction, and, therefore, there was no subsisting decree which could be executed any further and the Court had no jurisdiction to execute the same. Yet another contention was raissd to the effect that Order 32 Rule 7 Civil Procedure Code was not attracted in this case at all, and that in any case it was utterly wrong to say that the compromise was not in the interest of the minor.

It deserves to be noted that soon after the objections of the judgment-debtors were filed, the case was posted for arguments straightway without any issues having been framed on the material points at which the parties were at variance and without any evidence having been recorded. By his order dated the 25th August, 1959, the learned District Judge Pali who was the executing Court dismissed the appellant's application as not maintainable. It is against this order that the present appeal has been filed.

3. At this stage we should like to state briefly the findings of the learned District Judge, which led to the dismissal of the application of the appellant. In the first place, he found that the compromise which was entered into between the parties was not void but was only voidable at the instance of the minor; but in spite of that as the compromise in question had been entered into during the course of execution proceedings, the minor was competent to challenge the discharge by an application under Section 47 Civil Procedure Code and it was not necessary for him to bring any separate suit to have the compromise set aside. In the second place, the learned Judge held that as the compromise was voidable at the option of the minor, the burden to successfully avoid the discharge lay upon him and consequent-ly the latter should have alleged and proved fraud or collusion to invalidate the contract. The learned Judge then went on to find that neither any such allegation had been made by the minor nor was there any proof on the record to support the same.

According to the learned Judge, the only ground upon which the minor wished to displace the compromise was that no previous sanction of the Court had been obtained for the making of the compromise and that it was not in his interest. On the point of the compromise not having been made in the interest of the minor, the learned Judge seems to have entertained the view that as the compromise was made on behalf of the decree-holders by the grand-father of the appellant who also represented the latter's father Dhan-patraj in the suit as well as the execution proceedings, (Dhanpatraj being one of the two other decree-holders), there was a presumption that what was considered in the interest of the father was also in the interest of the minor. In the third place, the learned Judge held that although Narpat Raj was described as a minor in paragraph nine of the plaint, he was not so described in the title thereof and further he did not sue through any next friend, and the decree was also passed in favour of Narpat Raj appellant without there being any next friend for him.

The learned Judge then relied on Order 32 Rule 1 Civil Procedure Code which lays down that every suit by a minor shall be instituted in his name by a person who in such suit shall be called the next friend of the minor, and holding that this provision was mandatory concluded that there was a clear breach of it in the present case, and, therefore, the resultant position in law was that Narpatraj 'should be treated as non-existent in the panel of plaintiffs'. In this view of the whole matter, the learned Judge came to the conclusion that the execution application filed by Narpatraj was not maintainable and he dismissed it.

4. It has been vehemently argued before us on behalf of the appellant decree-holder that the findings of the learned District Judge on the two points last-mentioned are wholly wrong, and, therefore, the learned Judge should not have dismissed the appellant's application for execution. On the other hand, it was equally strongly urged before us on behalf of the respondents judgment-debtors that the finding of the learned Judge that the appellant was competent to challenge the compromise or the adjustment by an application under Section 47 Civil Procedure Code was wrong and that the only proper remedy which was open to him to seek the relief which he claimed was to file a suit. We propose to deal with these points in their proper order, and as we look at the case we think it proper to deal with the appellants contentions first.

5. The first question to decide in the order of importance to our mind is whether the learned District Judge was correct in holding in the circumstances of the case that the minor was not at all a party to the suit OF to the decree because if this point should fall to be decided in favour of the respondents judgment-debtors, it is likely to go to the root of the whole case, and then it may be unnecessary for us to deal with other point. In coming to the conclusion to which he did, the learned Judge seems to have placed his reliance on Order 32 Rule 1 Civil Procedure Code. This rule reads as follows:-

'Every suit by a minor shall be instituted in his name by a person who in such suit shall be called the next friend of the minor.'

Now, it is correct that although it was mentioned in the body of the plaint that plaintiff No. 2 Narpatraj was a minor and a next friend had been appointed for him, there is nothing whatsoever in the plaint to show who this next friend was, and, therefore, it cannot be rightly said that Rule 1 of Order 32 was complied with in this case.

6. The question, however is what is the pre-cise legal effect of any omission to do so. In order to decide this question, we must look at Rule 2 of this order. This rule provides that where a suit is instituted by or on behalf of a minor without a next friend, the defendant may apply to have the plaint taken off the file, with costs to be paid by the pleader or other person by whom it was presented, and further that when such an application is made, notice thereof must be given to such person and after hearing his objections, if any, the Court may pass such order as it may think fit. It is not the respondents' case that any such application was made on their behalf to have the plaint taken off the file, although it cannot but be admitted that they knew from the very allegations made in the plaint that the appellant was a minor.

The allegation which was made in paragraph nine of the plaint in this behalf was not controverted by anything said in the written statement filed on behalf of the judgment-debtors, and that being so, they must be deemed to have accepted the factum of the minority of the appellant. I There is authority for the proposition that where a defendant against whom a suit is instituted by a minor is aware of the minority of the plaintiff and yet he elects to proceed to trial without raising any objection under Order 32 Rule 2 Civil Procedure Code and takes the chance of a decree in his favour on the merits, he cannot be allowed when the trial has gone against him to contend that the suit was not maintainable owing to the minority of the plaintiff or that the decree passed in such a case was a nullity. See Sulaiman v. Abdul Shakoor, AIR 1940 Nag 99 and Gulab-chand v. Fulchand, AIR 1959 Bom 232. It has been held in these cases and many others that where a minor brings a suit except through a next friend and it proceeds to trial and the decree is passed therein without the defendant raising any objection to the procedure adopted, then such a defect amounts to a mere irregularity which can be waived by the defendant.

That being so, we are altogether unable to concur in the conclusion arrived at by the learned District Judge that the decree which was passed in this case in favour of the minor was a nullity so far as he was concerned, or that, for all practical purposes, he was not a plaintiff in the suit atall, and, therefore, he was not entitled to executethe decree which was passed in his favour. As wehave discussed above, the correct legal position isthat whatever defect there might have been in theprocedure adopted in the passing of such a decreein favour of the minor, that cannot have theeffect of vitiating the decree which continues intact as it was passed, and in this state of the law,we cannot but hold that Narpatraj was a goodenough plaintiff for the purposes of this case andan equally good decree-holder who would be entitled to execute such decree as has been passed inhis facour. The order of the Court below cannot,therefore, be upheld on this ground and we holdaccordingly.

7. The next point to consider is whether the dismissal of the appellant's application for execution can be sustained on the ground that he has neither pleaded nor proved any collusion or fraud between Sampat Raj who entered into the compromise on behalf of the decree-holders and the judgment-debtors. Learned counsel for the respondents frankly conceded that the view entertained by the learned Judge could not be supported in law. All that we should like to say in this connection is that if fraud or collusion is alleged in such a case on behalf of the minor, then these would certainly be grounds on which the compromise can be invalidated, but these are not the only grounds which can have that effect. Thus, for example where a minor neither alleges nor proves any of the two grounds mentioned above but is still able to show that the compromise that was made between the parties concerned was substantially adverse to his interests, then that would be a perfectly good ground for avoiding the compromise so far as the minor was concerned.

8. In this connection, we should also like to draw attention to the provisions of Order 32 Rule 7 Civil Procedure Code. This rule reads as follows:-

'(i) 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,

(2) Any such agreement or compromise entered into without the leave of the Court so recorded shall be voidable against all parties other than the minor.'

We should further like to draw attention in this connection to two things. The first is that it is well settled law that the salutary provision contained in this rule is mandatory in the sense that where the leave of the Court has not been obtained to the making of a compromise in a suit to which the minor is a party, such a compromise could be avoided by him if he chooses to do so. The second is that, although there was some difference of opinion on the point at one time, whether this rule applied to compromises in execution, there is now a consensus of opinion that it does, or, at any rate, the principle underlying it is applicable to compromises arrived at during the course of execution proceedings. See Lal Babu v. Rang Bahadur Singh, AIR 1936 Pat 506, Kastori Singh v. Pati Ram, AIR 1940 All 16, Prakash Chand v. Harbans Singh, AIR 1952 Punj 110 and Muthulakkammal v. Narappa Reddiar, ILR 56 Mad 430 : (AIR 1933 Mad 456) (FB).

9. The correct position, therefore, is that the provisions of Order 32 Rule 7 were fully attracted into application with respect to the compromise which was entered into in this case, and yet no sanction of the Court was obtained thereto before it was arrived at, and, therefore, the compromise is of a type which it should be possible for the minor to avoid if he chose to do so. This is of-course subject to two important considerations namely that the person who wants to avoid the compromise is proved to be a minor where the factum of minority happens to be challenged and that he further proves that the compromise is vitiated because of some valid reasons such as fot fraud or collusion or that the compromise is prejudicial to the interests of the minor. As the compromise in any case is not void, it is for the-party, that is the minor, who wishes to avoid it, to prove any of these factors. But what we should further like to point out in this connection is that the learned District Judge is not right in so far as he seems to have thought that it is for the minor necessarily to establish either fraud or collusion before he can proceed to avoid the compromise or further that as regards the question whether the compromise was prejudicial to the interests of the minor or not, that was just a matter of conjecture.

Whether a compromise is bad because of fraud or collusion or owing to its being prejudicial to the interests of the minor, are all questions of fact upon which proper issues require to be fram-ed, and an opportunity of leading evidence has to be afforded to all the parties concerned. We can-not help saying that in so far as the present case was conducted in the executing Court without any consideration to these essentials having been gone into and proved, the conduct of this case on behalf of everyone concerned leaves a lot to be desired. Be that as it may, it is clear from what we have stated above that the finding of the learned Judge on this aspect of the case cannot be upheld either and we, therefore, set it aside.

10. This brings us to the point as to the maintainability of the appellant's execution appli-cation under Section 47 Civil Procedure Code upon which question learned counsel for both parties addressed full-dress arguments to us. The contention on behalf of the respondents is that even if we disagree with the findings of the Court below on the two points which we have fully discussed above, we should still uphold the final order of that learned Judge because the kind of dispute which the appellant seeka to raise could only be raised by him by means of a proper suit and not by means of an application in the execu-tion department under Section 47 Civil Procedure Code. It may be pointed out that if learned counsel succeeds in establishing this contention of his the present appeal must still be dismissed even though we have disagreed with the other conclusions at which the learned District Judge arrived in this case.

The submission of learned counsel for the respondents, put succinctly, is that there was a complete adjustment of the decree in this case, and that in pursuance o the compromise arrived at between the parties as big a sum as 2,000/- odd rupees was paid by the judg-ment-debtors to Sampatraj, counsel for the decree-holders and the execution application came to be dismissed in full satisfaction thereof. According to learned counsel, this resulted in two things. The first is that there was no subsisting decree at the date it was further sought to be executed by the appellant decree-holder and the second is that there was an order of the Court under Order 21 Rule 2 Civil Procedure Code by which the decree was certified as having been fully adjusted which order of the Court amounted to a decree by virtue of the provisions of Section 47 read with Section 2(2) Civil Procedure Code, and in such circumstances a second execution application was utterly unmaintainable, at any rate, until the order of the Court that was passed under Order 21 Rule 2 certifying the decree to have been completely executed, was displaced according to law.

It was further vehemently argued before us in this connection that although an execution application was made on behalf of the minor appellant, with which we are concerned in this case and that application was accompanied by another application in which the minor set out the facts relevant to the compromise and how he was not bound by it, no prayer whatsoever had been made by or on behalf of the appellant that the earlier order of the Court which was passed under Order 21 Rule 2 dated the 3rd March, 1956, should be set aside.

11. In support of this submission, learned counsel referred us to a number of cases; but we do not consider it necessary to deal with them individually. It is true that in some of these cases, and in this connection reference may be made to Arunachallam v. Murugappa, ILR 12 Mad 503 and Umar v. Mahabir Lal, AIR 1940 Pat 59, it was held that a minor must bring a suit in order to avoid the compromise which had been arrived at between the parties concerned. But what requires to be noted is that these were cases of compromises which were arrived at during the pendency of the suit and not in the course of execution. These cases, in our opinion, are entirely distinguishable from the class of case we have before us and cannot be of any assistance to the respondents. The actual decision reached in these cases is perfectly supportable on the principle that it is not the business of the executing Court to go behind the decree and that it must accept its correctness or validity except where there is a lack of inherent jurisdiction in the Court passing it.

12. While we are on this aspect of the case, we should like to point out in particular that perhaps it would be going too far to hold that granting that it is open to a minor to avoid a compromise which may have been arrived at without the prior sanction of the Court, the only method to avoid or repudiate such a compromise is by instituting a suit by himself on attaining majority or during the course of his minority through a next friend. There is authority for holding that it is open to a minor to avoid the compromise by any other appropriate act and not necessarily by instituting the suit himself or through a next friend. Thus it was held in Jai Narain v. Bechoo Lal, AIR 1938 All 369 that

'it is not necessary that a minor on attaining majority should institute a suit to set aside a transfer effected by a guardian; it is sufficient if he declares his will to rescind the transaction by way of defence when an action is brought to enforce the mortgage against him.'

The same view appears to have been taken in Durga Charan v. Akkari Das, AIR 1949 Cal 617, and with respect, we are in full agreement with this opinion.

13. Then we have beer referred by learned counsel to another class of cases among which may be mentioned Kapiluddin Ahmad v. Kam-ruddin Ahmad, 5 Ind Cas 148 (Cal) and Virupakshappa v. Shidapa, ILR 23 Bom 620. The first case was not of a minor at all. What transpired in this case was that a decree-holder put in a fresh application for execution of his decree after he had certified to the Court in the course of an ear- lier execution application that his decree had been entirely satisfied, the ground being that there had been a mistake in calculation. It was held that the further execution application was not maintainable and that, the proper course for the decree-holder was to apply for a review. In. Virupaksappa's case, ILR 23 Bom 620 the contention was that the compromise for which sanction had been obtained from the Court gaye the minors less property than what they were entitled to under the decree. It was held that the compromise could not be reopened by the Court proprio motu on any such ground and that the modes in which such an order could be impeached were, at the most, two, namely by review or by suit.

14. Another case to which we were referred in this connection is Ram Ghulam v. Sham Sahai, AIR 1920 Pat 750. In this case, an order was made certifying satisfaction of a decree on the basis of a compromise. Some of the judgment- debtors were minors and although they were re- presented by a guardian ad litem, he had not obtained the Court's sanction to the compromise. The executing Court in these circumstances set aside the compromise. In revision, it was held by the High Court that the only remedy of the minors was to apply for a review. What is further important to note is that the learned Judges said that the minors could not bring a separate suit by reason of the provisions of Section 47 Civil Procedure Code. It was further held that as there was no application for review, the executing Court had no jurisdiction to vacate its previous order.

15. We may as well refer to AIR 1936 Pat 506 (Supra), here in which it was held that where an executing Court has recorded a compromise or an adjustment of a decree which has been effected by a next friend of a minor but without the sanction of the Court and such a compromise is sought to be set aside on the ground that the compromise had been obtained by fraud, it was held that Section 47 bars a fresh suit for setting aside the adjustment, and the proper remedy of the minor in such a case is by an application for review or by invoking the inherent jurisdiction of the Court under Section 151 independently of Order 47 Rule I Civil Procedure Code.

16. These cases, in our opinion, do not afford any assistance to the judgment-debtors respondents. They establish at least this much that the order of complete satisfaction of a decree is capable of being attacked by a review application. But what requires to be particularly noted is that at least in two of these cases, namely, (1) AIR 1920 Pat 750 and (2) AIR 1936 Pat 506 (Supra), the view has been taken that the remedy of a separate suit would be barred by virtue of the provisions of Section 47 Civil Procedure Code. We should also like to point out that so far as the remedy of a review is concerned, it would undoubtedly lie in the execution department itself.

17. The crucial question which falls for de-termination in these circumstances is whether it is open to a minor decree-holder to secure the relief which he seeks by means of an application for execution under Section 47 Civil Procedure Code without more in the circumstances of a case like the one we have before us. As we have already pointed out above, there is excellent authority for the view that it would be perfectly legal for a minor to repudiate or avoid a compromise for which prior sanction of the Court has not been obtained not by necessarily filing a suit to have such a compromise set aside but by any other appropriate proceeding also.

It admits of no doubt or dispute that accord-ing to the scheme for execution of decrees propounded in the Code of Civil Procedure, a decree-bolder can make successive applications for execution of his decree so long as they are within time and are not barred by any other principle or provision of law. The only obstacle upon which learned counsel for the respondents relies in support of his stand is that there was an earlier order of the Court dated the 3rd March, 1956, by which upon the decree-holder's counsel having certified that the decree in question had been adjusted in full by a compromise, the execution application came to be dismissed in full satisfaction, and it is strongly contended before us that so long as this order stood intact, the appellant could not pos-sibly be entitled to any relief in the execution de-partment.

18. Now, this broad submission cannot be accepted as sound on the authorities relied on by learned counsel himself; for, as we have pointed out above they do give the minor an opportunity to seek his relief by review in the execution department itself. But learned counsel then contends that no such review application was filed in the case, and that even if it were to be assumed that the separate application which the appellant filed in support of his application for execution was a review application, it would be obviously barred by time.

We do not wish to go into this aspect of the controversy because, in our considered opinion, the order of the Court dated the 3rd March, 1956, by which the decree in this case was recorded as having been fully satisfied cannot bind the minor in law, within the meaning, of the provisions of Order 21 Rule 2 read with Order 21 Rule 15 Civil Procedure Code. Here was a decree which was in favour of a number of decree-holders of whom one, the appellant, was a minor. A compromise was then arrived at between the judgment-debtors and the counsel on behalf of the dercee-holders and the former paid money in pursuance of it to the latter and the decree was accepted as having been fully satisfied and the execution application was dismissed as such.

19. In these circumstances, the question that arises for decision is whether this discharge was binding on the minor. It has to be remembered in this connection that before such a compromise could have been properly and lawfully arrived at on behalf of the minor, the sanction of the Court must have been obtained therefor under Order 32 Rule 7 Civil Procedure Code. This was admittedly not done. There is thus no getting away from the position that the compromise was arrived at and got recorded without proper authority so far as the minor was concerned. It has been held in numerous cases where a decree has been passed in favour of a number of decree-holders, and, in the course of execution one of the decree-hold-ders happens to give a discharge to the judgment-debtor and the decree is recorded as having been fully satisfied and execution dismissed as such, then such a discharge is not binding on the other decreerholders who were not parties to the compromise, unless it can be shown that the decree-holder who entered into the compromise and gave the discharge had due authority from the others.

20. Thus it was held in Karam Singh v. D. S. Tailor, AIR 1929 Lah 462 that a co-decree-holder cannot give a valid discharge to the judgment-debtor unless it can be proved that he was duly authorised to do so by the other decree-holders and had the authority to bind them as their agent as they are not bound by any dealings between him and the judgment-debtor, though it was further held in this case that it was possible for him to give a valid discharge with respect to his own share in the decree.

21. Again it was held in Pitchakkuttiya Pil-lai v. Doraiswami Moopanar, AIR 1925 Mad 230 (2) that payment to one of several joint decree-holders will not be even a partial satisfaction of the decree unless the payee was an agent of the others for receiving the whole amount on their behalf or unless the distinct share of each of the joint decree-holders was ascertained and known.

22. The same view appears to have been taken in Surendra Kumar v. Abhay Kumar Das, AIR 1930 Cal. 78.

23. Again in Fatimabi v. Mt. Tukabai, AIR 1945 Nag 95, it was laid down that the execution proceedings are a continuance of a suit and a next friend or guardian, after a decree is passed, cannot enter into a compromise or an adjustment of the decree without the sanction of the Court and even if a joint decree-holder acts as a manager on behalf of the joint family, he is subject to requirements of Order 32 Rules 6 and 7, and, therefore, where the attention of the Court was never directed to the fact that the interest of the minor was involved and the compromise was in the interest of the minor and the Court never applied Its mind and did not decide that the compromise was for the benefit of the minor, it was held that the adjustment of the decree under Order 21 Rule 2 Civil Procedure Code would not be binding upon the minor decree-holders.

24. Yet again in Valchand v. Manekbai, AIR 1953 Bom 137, it was laid down that payment to one of the several joint decree-holders cannot be recognised as a payment to all (unless he is authorised to receive such payment on behalf of all), and does not amount to a pro tanto satisfaction even to the extent of what is regarded to be the share in the decree of the decree-holder who receives payment, and, therefore, the remaining dec-ree-holders are entitled to execute this decree.

25. Can it be said, therefore, in this state of the law that the order made by the Court under Order 21 Rule 2 in this case dismissing the execution application as having been completely satisfied on the footing of the compromise is binding on the minor? Our answer to this question is in the negative. If that is the correct conclusion to come to, under the circumstances, as we think it is, then there can be no escape from the conclusion that if the minor makes his choice not to be bound by this compromise and to avoid it, it should be open to him to do so by an unequivocal act to that effect by any appropriate method. We further think that once it is held that the order which we have discussed above was not binding on the minor there can be nothing which should lawfully stand in the way of the minor making a further application for execution, the reason being that after all is said and done, the stand taken by the minor is that he wishes to repudiate the compromise which was arrived at without the sanction of the Court and which allegedly was not in his interest and such a question, in our opinion, clearly falls within the domain of questions relating to the discharge or satisfaction of the decree. In fact the moment we come to the conclusion that such a question properly relates to the area in which Section 47 operates, the remedy by a separate suit will appear to us to be completely barred.

We do not desire to suggest that it would be open in such a case to a minor to come forward and repudiate the compromise whenever he wishes to do so. He must make up his mind whether to accept or to repudiate the compromise within the time permitted to him by law, and, that time, apart from those cases where a review application may be said to lie and may have been filed, would be three years from the date of his attaining majority. Assuming for the purposes of the present point that the appellant attained majority on the 12th September, 1957, his alleged date of birth being 12th September, 1939, the present application for execution having been filed on the 2nd August, 1958, would be well within time. But leaving aside the question of limitation, we have no hesitation in saying, for the reasons we have set out above, that the present execution application of the appellant which was filed on the 2nd August, 1958, is sustainable in taw.

26.That, however, is not sufficient to dispose of the present appeal. For it is not enough for a minor merely to say that he wishes to repudiate a compromise which had been arrived at without the sanction of the Court to enable him to avoid its consequences in a Court of law, but he must establish fraud or collusion or prejudice to his own interest before he can be allowed to do so. It is correct, as stated by the learned Judge below, that the appellant here did not allege fraud or collusion, and, therefore, no such ground can legitimately arise for investigation or decision. The appellant, however, did urge that the compromise in question was prejudicial to his interests. This allegation was denied by the judgment-debtors, and they stoutly maintained that the compromise, under the circumstances in which it had been arrived at, was perfectly in the interests of the appellant and that the party who had agreed to it on the side of the decree-holders was his grandfather himself who represented the appellant's father also.

It is to be regretted that this important question of fact was not made the subject-matter of any issue in the Court below. Nor did any of the parties concerned think it necessary to lead evidence on it, and as we have pointed out above, after the application for execution by the appellant and the objection by the judgment-debtors came to be filed, the case was posted straight-away for arguments, a course which does not commend itself to us on any principles of law or common sense. As things turn out, therefore, before this litigation can be properly disposed of, this aspect of the case must be gone into by a proper issue being framed on it and the parties permitted to lead their respective evidence relating thereto.

27. The next question which calls for some comment is the one relating to the appellant's minority. It is true that an allegation was made in the plaint that the appellant who was one of the plaintiffs therein was a minor. This was not controverted by the judgment-debtors who were defendants in their written statement. That, however, does not conclude the matter and the governing issue in this connection is whether the appellant was in fact a minor at the date of that compromise. This aspect of the case has also not been gone into in the Court below and it seems to have been assumed by the learned District Judge that the appellant was a minor at all relevant times. Perhaps the learned District Judge might have thought himself justified in adopting the course which he did because he had come to the conclusion that the application of the appellant deserved to be dismissed for the other reasons which we have discussed fully aboye, but with which findings we have not found it possible few us to agree. For a proper decision of this case, we are of opinion that this matter must also be gone into in the same manner in which the other matter to which we have referred above has to be decided.

28. For the reasons mentioned above, we allow this appeal, set aside the judgment of the learned District Judge and send the case back to him for a fresh disposal in the light of the observations made above and in accordance with law. The costs of this appeal will abide the final result.


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