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Subramania Pillai Alias Pillaimuthu Pillai Vs. S.V. Biravaperumal Pillai and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1935Mad1068; (1935)69MLJ523
AppellantSubramania Pillai Alias Pillaimuthu Pillai
RespondentS.V. Biravaperumal Pillai and ors.
Cases ReferredMuthalakkammal v. Narappa Reddiar
Excerpt:
- - i therefore hold that the compromise in this case connot be said to be bad because at the time when it was approved by the arbitrators no sanction of the court had been obtained......order 32, rule 7, would apply only to the determination of suits in court and not with respect to awards passed by the arbitrators and order 32, rule 7 applies to agreement or compromise with reference to a suit i.e., a pending suit. that argument was overruled by the learned judges. after overruling the argument in the last paragraph of the judgment the learned judges refer to a submission made by the counsel; 'the learned advocate for the appellant now applies to us for sanction of the adjustment. the respondent opposes this on the ground that the award and the decree on the award are collusive. the subordinate judge will now enquire into the question whether the adjustment is a proper adjustment and dispose of the matter according to law'. i understand what the learned judges meant.....
Judgment:

Madhavan Nair, J.

1. The plaintiff is the appellant. The suit out of which this second appeal arises was instituted for a declaration that the decrees in O.S. Nos. 48 and 349 of 1922 are not binding upon him and to have them avoided.

2. O.S. No. 48 of 1922 was filed by one Sivasankaram Pillai and his wife (the alleged adoptive father and mother of the plaintiff herein) against his brother's son Piraviperumal Pillai and another for a declaration that certain properties were their own, even though the patta was allowed to stand in the name of the first defendant therein. In the course of the suit both Sivasankaram Pillai and his wife died and the present plaintiff who claimed to be the adopted son came on record represented by his natural father as his next friend. In the same capacity as a minor he filed O.S. No. 439 of 1922 asking for relief with regard to certain other properties. Both these suits were referred to the arbitration of three men. The arbitrators did not have to take evidence to decide the suits for they were settled by a compromise. The compromise was signed by the plaintiff's father as his next friend but afterwards he wanted to resile from the compromise. When notice was given to him, he did not appear. Finally the arbitrators accepted the compromise and passed an award in accordance with it. In the present suit the plaintiff seeks to set aside the decrees on the ground of gross negligence on the part of the guardian. As a matter of fact it has been -found by both the lower Courts that the guardian has not been negligent at all and the compromise cannot be said to be unfair to the plaintiff. The arguments here advanced have not been pressed against the findings of the lower Courts on these matters.

3. The main argument of Mr. T.M. Krishnaswami Aiyar on behalf of the appellant is that for the compromise which was entered into before the arbitrator's permission of the Court had not been obtained and that therefore it is invalid having regard to the provisions of Order 32, Rule 7, Civil Procedure Code. At this stage I may point out that it was not argued in either of the lower Courts nor is there any issue on it that when the award came before the Court the Court did not consider whether the award was beneficial to the minor or not under Order 32, Rule 7 and that the order passed by the Court is therefore invalid. That argument was never advanced in either of the lower Courts. Here, Mr. T.M. Krishnaswmi Aiyar has put that argument also before me for consideration. I overruled it on the simple ground that the case before the lower Courts proceeded on the assumption that so far as the decretal orders of the Court were concerned there was no such objection the objection being based only on the ground as I have already pointed out that for the compromise accepted by the arbitrators no sanction of the Court had been obtained. Therefore the only question for consideration in this second appeal is, whether the compromise entered into by the parties before the arbitrators before it was accepted by them should receive the sanction of the Court to make their award valid in law. No authority directly bearing on the question has been brought to my notice.

4. One decision in Chennakesavulu v. Veeraswami (1932) 65 M.L.J. 755 was referred to, by the learned Counsel for the appellant. But in that case the facts show that the arbitrators proceeded beyond the terms of the reference made to them by the Court, with regard to all the questions and the observations have to be accepted in the light of those facts. Towards the later stage of the argument Mr. T.M. Krishnaswami Aiyar brought to my notice the decision in Muthalakkammal v. Narappa Reddiar : AIR1933Mad456 . It was held in that case that Order 32, Rule 7 of the first schedule of the Civil Procedure Code applies to execution proceedings. It is this order (Order 32, Rule 7) which says that before a decree is passed the Court should consider whether the compromise is advantageous or beneficial to the minor. The decision in the case relates solely to the point whether that order applies to execution proceedings but emphasis is placed on the last paragraph of the judgment. In that case a compromise of a suit which was passed by the arbitrators was pleaded in defence to the execution of a decree and the question was whether satisfaction of the decree can be recorded or not. It was argued that Order 32, Rule 7, would apply only to the determination of suits in Court and not with respect to awards passed by the arbitrators and Order 32, Rule 7 applies to agreement or compromise with reference to a suit i.e., a pending suit. That argument was overruled by the learned Judges. After overruling the argument in the last paragraph of the judgment the learned Judges refer to a submission made by the Counsel; 'The learned Advocate for the appellant now applies to us for sanction of the adjustment. The respondent opposes this on the ground that the award and the decree on the award are collusive. The Subordinate Judge will now enquire into the question whether the adjustment is a proper adjustment and dispose of the matter according to law'. I understand what the learned Judges meant to order in this paragraph was whether the adjustment which was pleaded in defence was a proper adjustment or not, that is to say, whether it was passed by the Court after considering that it is advantageous or beneficial to the minor having regard to the duty placed upon the Court under Order 32. Rule 7. As I have said at the beginning that question is not now before me; viz., whether the Court, when it accepted the compromise passed by the arbitrators' award and made that award a decree of the Court in the two suits 48 and 349 considered whether it was advantageous or beneficial to the minor or not. The Court can refuse to accept the award on the ground that in its opinion it is not advantageous or beneficial to the minor and this function of the Court will be discharged under Order 32, Rule 7. This is all what the learned Judges in the last paragraph of their Judgment in Muthalakkammal v. Narappa Reddiar : AIR1933Mad456 called upon the lower Court to do, i.e., to find out whether that adjustment of the decree is a proper adjustment having regard to the allegations made in the case. The present question whether the compromise was passed by the arbitrators without getting the previous sanction of the Court has nothing to do with the enquiry suggested by the learned Judges in the last paragraph of the judgment. I therefore hold that the compromise in this case connot be said to be bad because at the time when it was approved by the arbitrators no sanction of the Court had been obtained. I have already accepted the findings of the lower Court on the merits of the case that there is nothing to show that the guardian was negligent or that the compromise was not advantageous or beneficial to the minor.

5. In the rusult the second appeal is dismissed with costs.


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