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Sitala Das Mukerjee, Minor, by Ris Mother and Next Friend Biraj Lakshmi Devi and anr. Vs. Bhut Nath Nasker - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in62Ind.Cas.688
AppellantSitala Das Mukerjee, Minor, by Ris Mother and Next Friend Biraj Lakshmi Devi and anr.
RespondentBhut Nath Nasker
Excerpt:
civil procedure code (act v of 1908), order xxiii, rule 3 - compromise on behalf of minor--leave of court not expressly recorded, effect of. - .....is that the court below is wrong in holding that there was a compromise under order xxiii, rule 3. that rule provides for recording a compromise or adjustment where a suit has been adjusted wholly or in part by any lawful agreement or compromise. it is urged before us that, apart from any other question, there was no lawful agreement or compromise, because the decree-holder (auction-purchaser) was a minor and the guardian had no power to enter into any agreement or compromise on his behalf without the leave of the court expressly recorded in the proceedings (see order xxxil, rule 7).6. it is to be observed that the words 'expressly recorded in the proceedings' have been added in the new code and that there were no such words in the old code.7. in the present case, no leave was.....
Judgment:

1. This appeal and the Rale connected with it arise out of proceedings taken upon an application under Order XXI, Rule 90, for setting aside the sale of certain immoveable property.

2. While the application under Order XXI, Rule 90, was pending, the judgment-debtor made an application to the Court to the effect that the case had been compromised between the petitioner and the decree-holder, who was the purchaser. On the 20th February, the latter put in a petition repudiating such compromise.

3. The Court of first instance by its order, dated the 27th Marsh 1920, held that there was no adjustment or compromise as alleged on behalf of the petitioner, and accordingly refused to record the compromise. There was an appeal and the learned Subordinate Judge on appeal, differing from the view taken by the Munsif, held that there was a compromise and gave certain directions in the matter.

4. The decree-holder purchaser has preferred this appeal at d obtained a Rule.

5. The main contention raised on behalf of the appellant is that the Court below is wrong in holding that there was a compromise under Order XXIII, Rule 3. That rule provides for recording a compromise or adjustment where a suit has been adjusted wholly or in part by any lawful agreement or compromise. It is urged before us that, apart from any other question, there was no lawful agreement or compromise, because the decree-holder (auction-purchaser) was a minor and the guardian had no power to enter into any agreement or compromise on his behalf without the leave of the Court expressly recorded in the proceedings (See Order XXXIl, Rule 7).

6. It is to be observed that the words 'expressly recorded in the proceedings' have been added in the new Code and that there were no such words in the old Code.

7. In the present case, no leave was obtained from the Court and no leave was expressly recerded in the proceedings, and in fact it does not appear that the attention of the Court was drawn to the fact that the compromise was on behalf of a minor and was being entered into by his guardian.

8. The agreement or compromise, therefore, was not a lawful one within the meaning of Order XXIII, Rule 3, and that being so, the Court could not and ought not to have recorded the compromise.

9. The order of the Court below is accordingly set aside, and the application under Order XXI, Rule 90, will be heard on the merits by the Court of first instance.

10. As the matter comes up before us in appeal and in revision, it is unnecessary to consider whether the order appealed from is an appellate one.

11. Costs one gold mohur to abide the result.


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