Alfred Henry Lionel Leach, C.J.
1. The appellants were the defendants in O.S. No. 27 of 1932 of the District Court of West Godavari, instituted by two minors through their mother, acting as their next friend. A decree was passed against them and this was subsequently transferred to the respondent by the mother, acting as the guardian of the property of the minors. The respondent then applied to be brought on the record in the place of the decree-holders and to be allowed to execute the decree. The learned District Judge allowed the application, and the appeal is from that order. The question for decision is whether a guardian of the property of a minor can transfer a decree passed in favour of the minor without first obtaining the sanction of the Court. In allowing the application the learned Judge relied on the decision in Govindarajulu Naidu v. Rang a Rao (1920) 40 M.L.J. 124. The appeal has been placed before a Full Bench as that decision was dissented from in Kancherla Kanakayya v. Mulpuru Kotayya : AIR1921Mad587 .
2. Order 32, Rule 7 of the Code of Civil Procedure provides that no 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 the minor with reference to the suit in which he acts as next friend or guardian. The Rule Committee of this Court has added to Rule 7 this further rule:
(1-A) Where an application is made to the Court for leave to enter into an agreement or compromise or for withdrawal of a suit in pursuance of a compromise or for taking any other action on behalf of a minor or other person under disability and such minor or other person under disability is represented by counsel or pleader, the counsel or pleader shall file in Court with the application a certificate to the effect that the agreement or compromise or action proposed is in his opinion for the benefit of the minor or other person under disability. A decree or order for the compromise of a suit, appeal or matter to which a minor or other person under disability is a party, shall recite the sanction of the Court thereto and shall set out the terms of the compromise as in Form No. 24 in Appendix D to this schedule.
3. It is said on behalf of the appellants that the words 'for taking any other action on behalf of a minor or other person under disability' prohibit the lawful guardian of a Hindu minor transferring a decree obtained by the minor without the sanction of the Court. In Govindarajulu Naidu v. Ranga Rao (1920) 40 M.L.J. 124 Abdur Rahim and Odgers, JJ., held that these words did not take away the right of a guardian under Hindu Law to transfer a decree in favour of the minor, as the transfer did not constitute a proceeding in the suit. A decree is property and there is no reason why the guardian of a Hindu minor should not exercise the same powers with respect to it as he is allowed to do with regard to other assets of the minor. Hindu Law permits the guardian to alienate property under proper circumstances, but the minor can challenge the alienation on attaining majority if the power has been improperly exercised. It was on this reasoning that the learned Judges held that the sanction of the Court was not required to a transfer. The same question came before Ramesam and Spencer, JJ., in Kancherla Kanakayya v. Mulpuru Kotayya (1921) 41 M.L.J. 207. The learned Judges expressed their dissent from the decision in Govindarajulu Naidu v. Ranga Rao (1920) 40 M.L.J. 124 and regarded the decision in Shaik Davood Rowther v. Paramasami Pillai : (1916)31MLJ207 , as being in conflict with Govindarajulu Naidu v. Ranga Rao (1920) 40 M.L.J. 124. With great respect we can see no conflict. In our opinion Shaik Davood Rowther v. Paramasami Pillai : (1916)31MLJ207 has no bearing on the question. This was a case of an agreement adjusting a decree, the agreement which required to be recorded in Court being between the parties to the suit. We are here merely concerned with the transfer of a decree to a third party by a person who has in law the power to make the transfer. We consider that Govindarajulu Naidu v. Ranga Rao (1920) 40 M.L.J. 124 was rightly decided and consequently the decision in Kancherla Kanakayya v. Mulpuru Kotayya : AIR1921Mad587 must be overruled.
4. When a transfer of a decree has been made in accordance with law the Court is required to bring the name of the transferee on the record in the place of the decree-holder. When this has been done the decree may be executed in the same manner and subject to the same conditions as if the application were made by the decree-holder (Order 21, Rule 16). The appellants object to the order placing the respondent on the record as the transferee of the decree on the ground that the minors when they come of age may challenge the validity of the action of the guardian. It is possible that they may do so, but if they do it does not mean that the appellants will be compelled to pay twice over. Payment made in accordance with the Court's order will protect them.
5. It is also said that the acceptance of the opinion expressed in Govindarajulu Naidu v. Ranga Rao (1920) 40 M.L.J. 124 will have the effect of allowing a next friend or guardian ad litem when he happens to be guardian under Hindu Law to evade Rules 6 and 7 of Order 32, which have been framed for the protection of the minor. Rule 6 prohibits a next friend or guardian for the suit receiving without the leave of the Court any money or other movable property on behalf of a minor by way of compromise before the decree or order, or under a decree or order in favour of the minor. This may be the effect of holding that Rule 7(1-A) only applies to matters in a suit or proceeding, but this is not a matter with which the Court is now concerned. We are here to interpret the law and not to make it. If it is considered that a transfer of a decree of this nature should be subject to the sanction of the Court the Legislature may say so; but as the law stands at present it is not subject to such sanction. The transfer of this decree by the mother of the minors was something entirely outside the suit, and in our opinion she had full power to effect the transfer without the leave of the Court.
6. It follows that in our opinion the order of the learned District Judge is correct and the appeal consequently fails and must be dismissed with costs.
7. I agree that the leave of the Court is not necessary before a decree passed in favour of a minor plaintiff can be assigned; but I wish to add a few words indicating my reasons. In Kancherla Kanakayya V. Mulpuru Kotayya : AIR1921Mad587 , it seems to have been assumed by the learned Judges that the decision in Govindarajulu Naidu v. Ranga Rao : AIR1921Mad587 proceeded on a distinction between what happened before decree and what happened after decree. With due respect, I do not so read the judgment in that case. I understand the learned Judges to have emphasised the distinction between matters in dispute between the parties and matters outside the scope of the suit. Clause 1 (b) of Rule 6 of Order 32 makes it clear that the order as a whole is not restricted to proceedings prior to decree, and in view of the fact that the Code contemplates agreements or adjustments between parties either under Order 23, Rule 3 which applies to the stage prior to decree or under Order 21, Rule 2, which applies to the stage after decree, it does not seem to me right to read the decision in Govindarajulu Naidu v. Ranga Rao (1920) 40 M.L.J. 124 as turning on that distinction.
8. The real question, as indicated in the opinion delivered by my Lord, is whether there is sufficient in the provisions of Order 32, to interfere with the rights of a natural guardian or a legal guardian who also happens to be the next friend, in the matter of dealing with a decree as part of the property belonging to the minor. It does not seem to me that there is much force in the argument based upon Clause 1-A, added to Rule 7 by the rules made by this Court in 1910. That clause does not prescribe that the leave of the Court is necessary in any particular matter; it only prescribes the course to be adopted when an application is made to the Court for leave to do certain things. It assumes that tinder other provisions of Order 32 or of some other law, an application for leave has to be made. Such applications are contemplated by Rule 6 as well as the provisa added to it by this Court and also by Rule 7. It does not, therefore, seem to me right to infer from Clause 1-A of Rule 7 that the scope of Rule 7 has been extended. As regards Rule 7 itself, the natural construction of the words used there, namely, 'agreement or compromise', appears to be that the agreement or compromise is one between the parties to the suit as contemplated by Order 23, Rule 3 or Order 21, Rule 2.
9. It is no doubt possible that this view restricting Rule 7 in the above sense may enable a next friend to evade the restrictions imposed by Rule 6; but, as pointed out by my Lord, this is not a matter which the Court can take into account in interpreting Rule 7. Rule 7 deals with the conduct of a 'next friend' as such, who, as pointed out in Rhodes v. Swithewbank (1889) 22 Q.B.D. 557 is an officer of the Court to conduct the suit; and the principle underlying Rule 7 is that whenever he proposes to do anything beyond the normal conduct of the suit, he has to obtain the leave of the Court to do so. But when a decree passed in favour of a minor is sought to be assigned, the person making the transfer acts not in the capacity of next friend but in his capacity as the guardian of the minor's estate. It is true that in Ganesha Row v. Tuljaram Row the Privy Council have laid down that to the extent to which the Code has imposed limitations upon the powers of a guardian under the Hindu Law, those powers must be exercised in conformity with the provisions of the Code; but except to the extent to which the Code has expressly limited those powers there is no reason to curtail them.
Lakshmana Rao, J.
10. I agree with my Lord the Chief Justice and have nothing to add.