Dokku Bhushayya vs Katragadda Ramakrishnayya

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1962 Supreme(SC) 186

SUPREME COURT OF INDIA
A.K. SARKAR, K. SUBBA RAO AND J.R. MUDHOLKAR JJ.
Dokku Bhushayya, Appellant
Versus
Katragadda Ramakrishnayya and others, Responents.
Civil Appeal No. 483 of 1957.
27th April, 1962.
Advocates appeared
Mr. A. V. Viswanatha Sastri, Senior Advocate (Mr. T. V. R. Tatachari, Advocate, with him), for Appellant; Mr. K. Bhimasankaram, Senior Advocate, (Mr. B. K. B. Naidu, Advocate with him), for Respondents Nos. 1 and 2; Mr. T. Satyanarayana Advocate for Respondents Nos. 7 and 8.

Advocates:
A.V.VISHWANATHA SASTRI, B.K.B.Naidu, K.Bhimasankaran, T.SATYANARAYANA, T.V.R.TATACHARI

Headnote:NOT NECESSARY TO FRAME ISSUES IN OBJECTION UNDER SECTION 47 AS SECTION 141 DOES NOT APPLY - PROVISIONS OF THIS RULE APPLY TO EXECUTION PROCEEDING - SCOPE AND APPLICABILITY - “WITH REFERENCE TO THE SUITS’’—EXPRESSION—MEANING - EXECUTION PROCEEDINGS - DEALINGS OF A GUARDIAN WITH PERSONS NOT PARTIES TO A SUIT - APPLICATION OF RULE - APPLICATION OF SECTION 141
       -this Rule is one of the provisions designed to safeguard the interests of a minor during the pendency of a suit against hostile, negligent or collusive acts of a guardian. The scope of the provisions is implicit in the phraseology used therein. The crucial words are “any agreement or compromise ......with reference to the suit.” The words “with reference”, if taken out of the context, are of the widest import. They may take in every procedural step in the conduct of a suit, such as adjournment admission of documents, interlocutories, inspection etc. and obviously it could not have been the intention of the Legislature that agreements in respect of such procedural steps should conform to the requirements of the rule. If that be not so, the rule instead of protecting the interests of a minor would easily become obstacle in disposing of suits in which a minor is ranged as party on one side or the other. So consistent with the purpose of the rule the words “with reference to the suit” must be limited to the rights put in issue in the suit - Dokku Bhushayya v. Katragadda Ramkrishnayya,
       -just like in the case of a suit in the case of execution proceedings, also, the agreement or compromise shall be one affecting rights or liabilities ascertained or declared by the decree in execution. As in the case of a suit, so also in the case of an execution of a decree, mere procedural steps not affecting the rights or liabilities so declared are not governed by the provision. The guardian may agree to an adjournment of a sale, to a waiver of a fresh proclamation, to a reduction of upset price etc. It could not have been the intention of the legislature that every time such a step is taken, the procedure laid down in this Rule should be complied with - Dokku Bhushayya v. Katragadda Ramakrishnayya,
       -the agreement or compromise should be entered into with a party to a suit or his legal representative. The Rule does not provide for dealing of a guardian with persons not parties to a suit - Dokku Bhushayya v. Katragadda Ramakrishnayya,
       -this rule will apply only to an agreement or compromise entered into by guardian of a party to the suit, who is a minor, with another party thereof during the pendency of the suit and the execution proceedings - Dokku Bhushayya v. Katragadda Ramakrishnayya,.
       -this Section will not apply for two reasons, namely (1) an execution proceedings were continuation of suit within the meaning of this rule and as the Code provided specifically for suits. Section 141 could not be invoked, and (2) an application by a judgment-debtor to set-aside a sale is a proceeding in execution and therefore Section 141, which applies only to original proceedings; does not apply to such proceedings - Dokku Bhushayya v. Katragadda Ramakrishnayya,

Judgment

SARKAR, J. : (minority view) In 1929, one Bapiah filed a suit against the appellant, then a minor, his father and another person on a promissory note executed by the two last mentioned persons. The appellant was represented in that suit by his maternal grandfather as his guardian ad litem. A decree was passed in that suit. The decree-holder put the decree in execution and obtained an order for the sale of certain properties in which the appellant was interested. The properties were sold in due course in favour, it is said, of a clerk of the decreeholder. Thereafter, the appellant s guardian ad litem made an application under Or. 21 R. 90 of the Code of Civil Procedure for setting aside the sale. Later, however, the guardian ad litem came to a settlement with the decree-holder and the auction purchaser that the guardian ad litem would give up the contention regarding the invalidity of the sale and withdraw the petition to set it aside and also give up possession of the properties sold to the auction purchaser and the decree-holder and the auction purchaser in their turn would give up their claim for costs of the petition. In pursuance of this agreement the petition was withdrawn and dismissed by order made on August 12, 1932.

2. After attaining majority, the appellant filed a suit in 1944 to set aside the order of August 12, 1932, and for a re-hearing of the petition which was dismissed by the order of that date. It is from this suit that the present appeal arises. The suit was decreed by the trial Court but on appeal the decision of the trial Court was reversed by the High Court at Madras and the suit was ordered to be dismissed. There is no disputed that the suit was competent and within time.

3. The only question in this appeal is whether the order of August 12, 1932, is voidable under Or. 32 R. 7 of the Code of Civil Procedure, 1908, at the instance of the appellant. That rule forbids the guardian for the suit to "enter into any agreement or compromise on behalf of a minor with reference to the suit" without the leave of the court and provides that any such agreement or compromise entered into without the leave of the court shall be voidable against all parties, other than minor.

4. Order 32, R. 7 of the present Code corresponds to S. 462 of the Code of 1882. It has been settled since the Code of 1882 was in force that the provision under consideration applies to proceedings in execution though it only mentions agreement or compromise with reference to the suit. As long ago as 1901, Jenkins C. J. said in Virupakshappa v. Shidappa, ILR 26 Bom 109 at p. 114, "I will first deal with the question whether S. 462 applies to a compromise of execution proceedings. On the words of the section I think it does; applications in execution are proceedings in the suit, so that a compromise of such a proceeding would be a compromise with reference to the suit." This view has been followed ever since.

5. The High Court took the view that a compromise of an execution proceeding would be within Or. 32, R. 7 only when it affected directly the rights and liabilities created by the decree. It observed that the compromise in the present case was not affected by the rule as it concerned only the rights and liabilities under the auction sale and not those arising under the decree.

6. I am unable to agree with this view. The High Court rested itself on the fact that all the reported decisions dealt with cases in which the agreements had directly affected the rights and liabilities under the decree. This does not to my mind furnish sufficient justification for the High Court s view. No decision has been brought to our notice in which it has been held that Or. 32, R. 7 does not apply to a compromise of execution proceedings which does not directly affect the rights and liabilities created by the decree. It does not seem to me that on principle the High Court s view can be justified.

7. It is true that Or. 32, R. 7 does not apply to all agreements. I

Click Here to Read the rest of this document