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Nurul Anwar and ors. Vs. Sm. Golenoor Bibi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1934Cal845,153Ind.Cas.289
AppellantNurul Anwar and ors.
RespondentSm. Golenoor Bibi and ors.
Excerpt:
- .....represented the minors. they assented to the reference which was therefore complete. the learned munsif did not expressly note on the record his sanction to this agreement. eventually an award was made and a decree passed in accordance with the award. the minors then instituted the present suit in which they asked for various reliefs. as usual in these cases, various allegations were made against the natural guardians. the learned munsif took one view of the conduct of these ladies whereas the learned subordinate judge took another. the learned munsif was rather doubtful whether in fact they knew anything about the case at all but he was at any rate satisfied that they did not understand what they were doing. the learned subordinate judge, on the other hand, was quite satisfied.....
Judgment:

Henderson, J.

1. This appeal is only concerned with one Small point but it will be necessary to set out the facts at some length. There was a certain suit, No. 549 of 1925, instituted in the Munsif's Court at Uluberia in which the present plaintiffs were defendants. There was a reference to arbitration. The present plaintiffs were minors and were represented by a pleader guardian. The natural guardians then got the pleader discharged and themselves represented the minors. They assented to the reference which was therefore complete. The learned Munsif did not expressly note on the record his sanction to this agreement. Eventually an award was made and a decree passed in accordance with the award. The minors then instituted the present suit in which they asked for various reliefs. As usual in these cases, various allegations were made against the natural guardians. The learned Munsif took one view of the conduct of these ladies whereas the learned Subordinate Judge took another. The learned Munsif was rather doubtful whether in fact they knew anything about the case at all but he was at any rate satisfied that they did not understand what they were doing. The learned Subordinate Judge, on the other hand, was quite satisfied that these ladies knew what they were doing, that they assented to the agreement and that the agreement was a perfectly sensible one. He was also satisfied that the award was a fair one. But, be this as it may, the agreement was void so far as the minors were concerned because the provisions of Order 32, Rule 7, Civil P. C, were not complied with. The learned Subordinate Judge thought that the Court gave an oral sanction to the agreement but at any rate came to the finding that the provisions of Order 32, Rule 7, were not complied with and that the agreement was void so far as the minors were concerned.

2. The Munsif passed a decree in which he set aside the award and the decree passed in Title Suit No. 549 in toto. Defendants 1 and 2 then appealed. Although the learned Subordinate Judge was against them so far as the minors were concerned he modified the decree and directed that the decree passed in Suit No. 549 should be set aside against the minors only and maintained so far as the other parties to the suit were concerned. The present appeal has been filed by the minors, who appear to have had no interest whatever in it, and a large number of pro forma defendants. Defendants 1 and 2 have filed cross-objections asking that the whole suit be dismissed. The only point taken in the appeal is that the decree of the Munsif should be restored. Although the agreement is void so far as the minors are concerned, it is merely voidable in the case of the other parties. The minors have no cause of action whatever so far as the other parties to the decree are concerned. It may be that they have been set up by the defendants who have joined them in this appeal; but I have no means of knowing that and for aught I know to the contrary the other parties to the decree may have no desire to set it aside; at any rate, they have taken no steps to do so, and if they did take such steps they would have to face difficulties with regard to the maintainability of the suit. The learned Subordinate Judge has given the plaintiffs all the reliefs to which they could possibly be entitled on that cause of action and there is nothing wrong in his decree.

3. The cross-objection is pressed on the ground that the suit was not maintainable and was also unnecessary. I have no doubt that the decree passed against the minors is void whether it is set aside or not, but that is not sufficient. The plaintiffs do not merely ask for a declaration; they also ask for an injunction. If the suit is dismissed and an attempt is made to execute the decree against them they will not be able to show that, in fact, it was void on the ground that the provisions of Order 32, Rule 7 were not complied with. It is therefore impossible to say that the suit was unnecessary or was not maintainable. The result is that the appeal is dismissed. As I am not at all satisfied that the minors have any interest in it, the costs of the respondents will be paid by the defendants appellants. The cross-objection is also dismissed with costs. The Rule is discharged with costs but without any hearing fee.


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