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Aksingh and anr. Vs. Durjansingh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. No. 234 of 1950
Judge
Reported inAIR1953Raj153
ActsCode of Civil Procedure (CPC) , 1908 - Sections 96 and 115 - Order 32, Rule 7 - Order 47, Rule 7
AppellantAksingh and anr.
RespondentDurjansingh and ors.
Appellant Advocate Hastimal, Adv.
Respondent Advocate Indersingh, Adv.
DispositionRevision dismissed
Cases ReferredGhulam Jilani v. Muhammad
Excerpt:
- - therefore, any decree passed by the court in a suit in which such express permission has not been recorded in the proceedings would be of no avail as against the minor, and would be voidable against the other parties as well. these words are very strong, and there is, under the circumstances, no scope for holding that leave can be inferred by implication. generally speaking, however, it is now well settled that it is enough if leave is granted by the use of a single word like 'sanctioned',allowed',permitted',and so on. this cannot be considered good law, specially after the privy council approved the decision in mt. this also, in my opinion, can no longer be held to be good law in view of the privy council decision in -chhabba lal's case',air 1946 p c 72 cited above......for the benefit and in the interest of the minor or not, but that it must also record the grant of leave expressly in the proceedings. where this grant of leave is not recorded expressly in the proceedings, the terms of order 32, rule 7 are not complied with. in the present case, there is nothing either in the order-sheet or on the application for leave to appeal, or even in the, judgment expressly recording the permission of the court to the guardian to compromise the matter.6. there is difference of opinion among the various high courts as to the form, in which the leave should be recorded. generally speaking, however, it is now well settled that it is enough if leave is granted by the use of a single word like 'sanctioned', 'allowed', 'permitted', and so on. but the high courts are.....
Judgment:
ORDER

Wanchoo, C.J.

1. This is a revision by Aksirigh, and Ratansingh, and has arisen in the following circumstances.

2. A suit was brought by Bhupsingh, father of the present applicants, for himself and as guardian of his two minor sons against Durjan-singh and others. On 12th August 1949, a compromise was arrived at between Bhupsingh for himself and as guardian of the minors and Durjansingh. By this compromise part of the claim was given up and the rest was admitted by Durjansingh. An application was also filed on the same date by Bhupsingh praying that he might be permitted to compromise the suit on behalf of the minors. There is only an endorsement on this application to the effect that it was produced by Bhupsingh and should be put on the record. On the same day, the Court passed a decree in favour of the applicants and their father Bhupsingh in terms of the compromise.

3. Then followed an application for review by the applicants. Their case in review Was that the provisions of Order 32, Rule 7 Civil P. C. had not been complied with, and therefore the decree passed should be reviewed. The Civil Judge, in whose Court the case was pending by the time the review application came to be decided, however, held that the provisions of Order 32, Rule 7 had been complied with and therefore dismissed the review application. The present revision is against the order dismissing the review application.

4. Order 32, Rule 7 is as follows:

'(1) No next friend or guardian for the suit shall, without 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 of 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.'

The contention on behalf of the applicants is that if express permission to enter into a compromise has not been recorded in the proceedings as required under Order 32, Rule 7, Civil P. C., the Court cannot act on the compromise as if it was entered into on behalf of the minor. Therefore, any decree passed by the Court in a suit in which such express permission has not been recorded in the proceedings would be of no avail as against the minor, and would be voidable against the other parties as well. In this case, the Court has nowhere expressly recorded in the proceedings any permission and therefore the review application should have been allowed.

4A. The view taken by the Civil Judge is that as an application for leave to enter into a compromise was given and was before the Court, the mere fact that the Court passed a decree based on the compromise is sufficient to comply with the provisions of Order 32, R, 7, and it was not necessary for the Court to say that it allowed the guardian to enter into a compromise. In any case, such a sanction could be inferred from the fact that the Court passed a decree in terms of the compromise.

5. I am of opinion that this view of the lower Court is not correct. The rule specifically lays down that the leave of the Court should be expressly recorded in the proceedings. These words are very strong, and there is, under the circumstances, no scope for holding that leave can be inferred by implication. These words namely 'expressly recorded in the proceedings' have been added in the Code of Civil Procedure of 1908, and it is now absolutely essential, not only that the attention of the Court may be drawn to the fact that there is a minor concerned, and the Court should apply its mind to the consideration of the question whether the compromise is for the benefit and in the interest of the minor or not, but that it must also record the grant of leave expressly in the proceedings. Where this grant of leave is not recorded expressly in the proceedings, the terms of Order 32, Rule 7 are not complied with. In the present case, there is nothing either in the order-sheet or on the application for leave to appeal, or even in the, judgment expressly recording the permission of the Court to the guardian to compromise the matter.

6. There is difference of opinion among the various High Courts as to the form, in which the leave should be recorded. Generally speaking, however, it is now well settled that it is enough if leave is granted by the use of a single word like 'sanctioned', 'allowed', 'permitted', and so on. But the High Courts are generally agreed that the leave must be expressly recorded in the proceedings in some form or other, and cannot be inferred merely from the fact that a decree has been passed on the basis of a compromise. I may in this connection refer to the leading case of -- 'Mt. Mariam v. Mt. Amina', AIR 1937 All 65 (FB). This case was approved by the Privy Council in -- 'Chhabba Lal v. Kallu Lal', AIR 1946 P C 72. The lower Court's view, therefore, that it must be held that the Court had given leave by implication to the guardian to enter into the compromise because it passed a decree on the basis of the compromise is of no avail in view of the specific provisions of Order 32, Rule 7, which require that the leave should be expressly recorded in the proceedings. No stronger words could have been used in the rule to require the Court to pass some order on the application for leave to compromise.

7. Learned counsel for the respondent refer to certain cases in support of the view taken by the Court below, and I may briefly consider them. The first case is -- 'Rajagopalan v. Subbarama Iyer', 53 Ind Cas 354 (Mad). In that case, the Court passed an order in one word 'granted' on the petition for leave to compromise. There was thus an order expressly recorded in the proceedings in that case, and it does not support the stand taken on behalf of the opposite party. The next case is -- 'Khushal Singh v. Labhsingh', 102 Ind Cas 358. That was a case which was concerned with the interpretation of Section 462, old Civil P. C., and not with p. 32, Rule 7 of the present Code. This case also is, therefore, irrelevant.

The next case is -- 'Badri Singh v. Chhotu Singh', 175 Ind Cas 75 (Pat). That case certainly supports the opposite party as there was no order which was expressly recorded in the proceedings. The learned Judges observed that a very strict view of the provisions of Order 32 should riot be taken. This cannot be considered good law, specially after the Privy Council approved the decision in Mt. Mariam's case.

The next case is -- 'Ramnarain Singh v. Atal Behari Singh', AIR 1939 Pat 387. In that case there was an application to refer the suit to arbitration. This application was signed by all the parties. There was also an application for leave by the guardians of the minor defendants but there was no application for leave by the guardians of the minor plaintiffs. It was held that the circumstances indicated that the Court had applied its mind to the application of the guardian of the minors for permission to agree to the reference, and hence the order directing reference to be made amounted to the recording of its permission. This also, in my opinion, can no longer be held to be good law in view of the Privy Council decision in -- 'Chhabba Lal's case', AIR 1946 P C 72 cited above. It may, however, be mentioned that the Patna High Court took a different view in another case --'Awadhesh Prasad v. Widow of Tribeni Prasad', AIR 1940 Pat 663.

The last case that was cited in. -- 'Bishundeo Narain v. Seogeni Rai', AIR 1951 S C 280. In that case, however, there was permission expressly recorded in these words:

'Permission granted as the compromise is for the minor's benefit.'

It was held by the Supreme Court that that was 'enough as the law did not prescribe any set form in which leave is to be granted.

8. A review of these authorities leads to the conclusion that except in a case here and there, the view of the High Courts generally is that permission in some form must be expressly recorded, and that if it is not so recorded, the provisions of Order 32, Rule 7 are not complied with. If I may say so with respect, I agree with this view and hold that in order that provisions off Order 32, Rule 7 are complied with permission must be expressly recorded in the proceedings in some form of words. In this case, the permission has not been recorded in any form either on the petition for leave, or in the order-sheet, or even in the judgment. The mere fact that a petition for leave has been made is not enough, for the rule requires that the leave of the Court should be expressly recorded. As such leave having not been recorded in the-case, the Court should not have passed a decree on the basis of the compromise.

9. It has, however, been urged on behalf of the respondents that no revision lies in this Court from an order rejecting an application for review as the applicants could come in appeal from the decree itself.

There is no doubt that where the applicant.can come in appeal from the decree itself, an Iorder rejecting his review petition cannot be I.taken in revision. Reference in this connectionmay be made to -- 'Ram Lal v. Ratan Lal', 26All 572. In that case, an appeal was dismissed. The appellant then applied for reviewof judgment, on the ground of discovery of newand important evidence. That application was:dismissed, and thereupon there was a revisionin the High Court. It was held that where suchan application for review is dismissed, thematter cannot be taken in revision to the HighCourt.

Reference may also be made to -- 'Peddib-oyima Viswanatham v. Sreenivasa Venkata Varadacharyulu', AIR 1943 Mad 377 (1). In that case also the trial Court had rejected an application for review of judgment, and there was a revision to the High Court. It was pointed out-that the petitioners could have appealed against the judgment in the three suits, & when such a remedy was available Section 115, Civil P. C. should not be invoked. There is no doubt that if a party has a right to come in appeal from toe original decree, he should do so, and the High Court would not interfere in revision with the order rejecting an application for review.

10. This raises the question whether an appeal would lie from an original order in the present case.

It is contended on behalf of the applicants that the original order was a consent decree and no appeal lies against it under Section 96, Civil P. C. Learned counsel for the opposite party, however, relies on -- 'Sagwa v. Dalwa', AIR 1952 All 97. In that case, it was held that in order that an appeal may be barred against a so-called consent decree, the consent decree must be a valid consent decree. A decree passed upon a compromise against a minor, for which leave of the Court was not obtained under the provisions of Order 32, Rule 7 cannot be said to be a valid consent decree. As such, the minor can challenge it by way of appeal and Section 96 does not bar it. In this case, reliance was placed on -- 'Chhabbalal's case', AIR 1946 P C 72, already cited. There is also an earlier Allahabad case -- 'Banwari Jogi v. Jamna Kasaudhan', 125 Ind Cas 587 (All)--where also it was held that where there was no valid consent, the decree could not be called a mere consent decree within Section 96(3), Civil P. C. from which no appeal could be preferred.

11. The appellants rely on -- 'Ghulam Jilani v. Muhammad', 39 Ind App 51 (PC) which was a case of a decree following an arbitration award. Their Lordships, while dealing with the provision of appeal under Section 522, Civil P. C. observed as follows at page 58:

'The principle of finality which finds expression in the Code is quite in accordance with the tendency of modern decisions in this country. The time has long gone by since the courts of this country shewed any disposition to sit as a Court of Appeal on awards in respect of matters of fact or in respect of matters of law.'

These observations show that their Lordships were against any appeal from the decision of the arbitrators once a decree followed on their award. But these words do not mean that if there was some obvious illegality in the very order of reference by the Court as distinct from the decision of the arbitrators, there could be no appeal from a decree based on an award on such illegal reference. The decision in --'Chhabba Lal's case', AIR 1946 P C 72 already cited makes it clear that if the reference to arbitration is itself obviously invalid, an appeal would lie on that ground. This decision does not, in any way, contradict the view taken by their Lordships in -- 'Ghulam Jilani's case' because they were dealing only with appeals from the award of the arbitrators on matters of fact or in respect of matters of law, and were not considering the question that the reference itself was invalid. Those words, therefore, in -- 'Ghulam Jilani's case' must be confined to cases where the reference is valid.

12. In -- 'Sagwa's case', the Allahabad High. Court has extended the principle enunciated in -- 'Chhabbalal's case', AIR 1946 P C 72, to cases of consent decree. It seems that where there is patent want of consent either on account of some defect in law or on account of some party or other not joining in the compromise, the party affected can come in appeal treating the consent decree as no decree at all against him.

13. In the present case, there is an obvious defect in law in as much as the permission to compromise which was necessary to be recorded in writing under Order 32, Rule 7 was not recorded at all by the Court. In the absence of such record of permission, it may in a sense be said that the minor was not a party to the consent decree, and therefore the decree that was passed against him was not a consent decree within the meaning of Section 96. In this view of the matter I am of opinion that an appeal would lie against the original decree on behalf of the minors on the ground that they were not party to the consent decree as the court had not recorded any permission to their guardian to compromise. Hence, under these circumstances, I am not prepared to interfere in revision with the order rejecting the application for review.

14. I, therefore, dismiss the revision, but in view of the circumstances of the case, order parties to bear their own costs of the proceedings in review in both the Courts.


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