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PATNA HIGH COURT
Ashwini Kumar Sinha, J.
Mahabir Mahton
Versus
Chandeshwar Mahton
Appeal From Appellate Decree No. 302 of 1975 ;
Decided On : MAY 10, 1984
COMPROMISE DECREE - AVOIDANCE BY MINOR - PROCEDURE - APPLICATION IN SUIT OR REGULAR SUIT - ORDER 32, RULE 7, C.P.C. - VOIDABLE DECREE - MINOR'S REMEDY - APPLICATION IN SUIT OR REGULAR SUIT - ORDER 41, RULE 4, C.P.C. - APPEAL BY MAJOR DEFENDANTS - MINOR DEFENDANTS AS RESPONDENTS - POWER OF APPELLATE COURT TO REVERSE OR VARY DECREE IN FAVOUR OF ALL DEFENDANTS.
Fact of the Case:
In a suit for declaration of title and confirmation of possession, a compromise decree was recorded without obtaining the court's permission and without informing the court that there were minors involved. The minor defendants filed an application in the suit itself to avoid the compromise decree, but the trial court and the lower appellate court held that the minors' remedy was only by way of a regular suit.
Finding of the Court:
The High Court held that the minor defendants could avoid the compromise decree by filing an application in the suit itself, and that the trial court and the lower appellate court erred in holding that the minors' only remedy was by way of a regular suit. The High Court also held that the lower appellate court erred in holding that the minor defendants could not challenge the decree as unlawful because the appeal was filed only by the major defendants.
Issues: 1. Whether the minor defendants could avoid the compromise decree by filing an application in the suit itself or their remedy was only by way of a regular suit. 2. Whether the lower appellate court erred in holding that the minor defendants could not challenge the decree as unlawful because the appeal was filed only by the major defendants.
Ratio Decidendi: 1. Order 32, Rule 7(2) of the Code of Civil Procedure provides that any agreement or compromise entered into without the leave of the court so recorded shall be voidable against all parties other than the minor. This means that the impugned agreement can be avoided by the minor against the parties who are major and that it cannot be avoided by the parties who are major against the minors. It is voidable and not void. It is voidable at the instance of the minor and not at the instance of other parties. It is voidable against the parties that are major but not against a minor. If the minor avoids the said agreement it would be set aside. But in no case can the infirmity in the agreement be used by other parties for the purpose of avoiding it in their own interest. 2. Order 41, Rule 4 of the Code of Civil Procedure empowers the appellate court to reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be. Even though the minor defendants were the respondents, the appellate court could look into the matter whether such a compromise decree could be avoided by the minors or not.
Final Decision: The High Court allowed the appeal, set aside the judgment and decree of the lower appellate court, and sent the matter back to the lower appellate court to decide the matter afresh, after hearing the parties on the materials already on the record and in accordance with law.
1. This second appeal is by the defendants against the judgment of affirmance.
2. The instant appeal involves a short point for consideration; The point involved is whether the minor defendants could avoid the compromise decree by filing an application in the suit itself or the remedy to the minors was only by way of a regular suit.
3. In order to decide the point involved, only a few facts need be stated. The plaintiffs (Chandeshwar Mahton and Bindeshwari Mahton) filed a suit for declaration of their title and confirmation of their possession or in the alternative for recovery of possession, in case they were found out of possession, in respect of the properties described in schedule of the plaint. The suit was contested by the defendants. The parties adduced evidence and closed their evidence. Argument was heard on 3-8-1962, and the case was adjourned for further argument on 4-8-1962. On 4-8-1962 a compromise was recorded in the terms as agreed between the major parties and the suit was decreed in full subject to the payment of certain amount by the plaintiffs in favour of the defendants by a certain fixed date. After compromise was recorded, on the same date, a petition was filed on behalf of the defendants to recall the order recording the compromise. The order was recalled on the same day and the case was adjourned to 6-8-62. As against the order recalling the earlier order recording the compromise, the plaintiffs preferred an appeal. The matter came up to this court in Civil Revision No. 1140 of 1962. This court set aside the order under revision and sent the case back to the trial court for a fresh consideration of the application filed by the defendants with certain directions. It observed as follows :-
"I must however state that the learned Munsif will give effect to the compromise if he finds that no fraud was practised on the court. He will have jurisdiction to recall his previous order only if he finds that the compromise was recorded as a result of fraud on the court by either party."
This court also observed that it would be open to the learned Munsif to make such enquiry and take such evidence as he thought proper.
4 When the matter went back to the lower court, an enquiry was held on the compromise matter. Both parties were allowed to adduced evidence. On 29-5-67 a petition was filed on behalf of one Smt. Chandrika Devi who was substituted as defendant No. 17 in place of Anandi Mahton, her minor son. This Chandrika Devi objected to the compromise being recorded under Order 23, Rule 3 of the Code of Civil Procedure (hereinafter to be referred to as the Code). The ground taken by Chandrika Devi was that the family of Mahabir Mahton and his sons had adverse interest against the family of Ram Prasad Mahton and his sons and so the same guardian could not represent the minor sons of Mahabir Mahton as also the minor sons of Ram Prasad Mahton and she challenged the appointment of guardian-ad-litem, in this background, as wholly illegal. Chandrika Devi also objected that guardian-ad-litem was negligent and did not look after the interest of the minors and so the minors were unrepresented at the time of the compromise and thus the compromise recorded was wholly unlawful.
5. On the next day, i.e., 30-5-67 another petition was filed by the defendants (major defendants) wherein they alleged that a fraud was practised upon the defendants as well as upon the court in getting an order from the court about the consent decree and on this ground, the defendants prayed that the compromise was fit to be set aside.
6. Again on 1-6-1967 another petition was filed on behalf of the minor defendants, i.e., defendant Nos. 14 to 16 (minor sons of Mahabir Mahton) through their natural guardian for setting aside the compromise and in this petition filed by the minor defendants it was contended that the provisions of Order 32, Rule 7 of the Code were not complied with and neither these minors nor their guardian had compromised the su
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