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Sharat Chunder Ghose and ors. Vs. Kartik Chunder Mitter and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1883)ILR9Cal810
AppellantSharat Chunder Ghose and ors.
RespondentKartik Chunder Mitter and anr.
Cases ReferredRajagopaul Takkaya Naiker v. Subramanya Ayyar I.L.R.
Excerpt:
suit by minor - infant--minor--compromise of suit--leave of court. - prinsep, j.1. on the 10th of march 1877 kartik chunder mitter brought a suit against the present plaintiffs, as represented by their mother and guardian modhumoti dassee, to recover a sum of money said to have been borrowed by showrobini, a hindu widow then in possession of the estate, which has since passed from her hands. three days later, and before any proceedings had been taken on the plaint to that suit, in fact before even summonses had been issued, modhumoti's pleader filed a petition of ekbaljamah, consenting to a decree in favour of kartik chunder for a portion of the amount sued for. a few days later a decree was passed in accordance with this petition. one of the three minor defendants in that case has now attained majority, and for himself, and also on behalf of his minor.....
Judgment:

Prinsep, J.

1. On the 10th of March 1877 Kartik Chunder Mitter brought a suit against the present plaintiffs, as represented by their mother and guardian Modhumoti Dassee, to recover a sum of money said to have been borrowed by Showrobini, a Hindu widow then in possession of the estate, which has since passed from her hands. Three days later, and before any proceedings had been taken on the plaint to that suit, in fact before even summonses had been issued, Modhumoti's pleader filed a petition of ekbaljamah, consenting to a decree in favour of Kartik Chunder for a portion of the amount sued for. A few days later a decree was passed in accordance with this petition. One of the three minor defendants in that case has now attained majority, and for himself, and also on behalf of his minor brothers, sues to get rid of the effect of that decree in consequence of its having been put into execution against him by the attachment of some of his property.

2. The District Judge on appeal has merely considered the manner in which the compromise was effected in which the decree was passed. On the facts, which have been stated, and also because he considered that the minors were sufficiently advised by their maternal uncle Brojendro Ghose and their relative Bishembur Bose, the District Judge has held that the decree was binding against them.

3. Whatever may have been the practice of our Courts regarding their duty in accepting compromises on behalf of minors in pending suits, and in embodying them in the terms of the decree, it is quite clear to us that since July 1871, that is to say since the decision of the Privy Council in the case of Abdul Ali v. Mozuffer Hossein Chowdhry 16 W.R. P.C. 22 the procedure of our Courts should have been guided by the rule laid down by their Lordships in that case. Their Lordships state that, 'if there really had been an honest compromise made, the practice of the Court is quite plain as to how that compromise ought to have been carried out. It ought to have been carried out by proper deeds and filed in Court, particularly where infants were concerned, so as to have had the assent of the Court at the time instead of its being totally concealed from them.' The rule laid down in that case has since been adopted by the legislature in enacting Section 462 of the present Code of Civil Procedure. It has been laid down by the Madras High Court in Rajagopaul Takkaya Naiker v. Subramanya Ayyar I.L.R. 3 Mad. 103 that the approval of the Court of a compromise thus effected must be express, and cannot be inferred from the subsequent passing of a decree in accordance with the terms of the compromise. We agree with that judgment and in applying it to the present case we think that the decree of the 27th March 1877 is inoperative as against the plaintiffs in the present case. The parties consequently will be placed in the position that they occupied before that decree was passed, but with the consent of the pleader for the respondents, we think that the liability of the plaintiffs to the debt incurred by Showrobini, which can be conveniently tried in the present suit on the second and third issues, should be so tried. These issues have been determined by the Court of First Instance, and therefore it remains for the lower Appellate Court to come to a distinct finding on them. For this purpose we direct that the case be remanded to the lower Appellate Court for trial on its merits. We would add that, in the event of the debt being found binding on the present plaintiff's, they will be liable for the whole amount, and not merely for the amount stipulated on their behalf in the compromise.

4. Costs will abide the result.


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