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Rajasthan High Court
Modi & Shinghal, JJ.
Narpat Raj - Appellant
Versus
Babulal - Respondents
D.B. Civil Execution 1st Appeal No. 23 of 1959
Decided On : August 10, 1963
Where a defendant against whom a suit is instituted by a minor is aware of the minority of the plaintiff and yet he elects to proceed to trial without raising any objection under O 32, r. 2 C.P.C. and takes the chance of a decree in his favour on the merits, he cannot be allowed when the trial has gone against him to contend that the suit was not maintainable owing to the minority of the plaintiff or that the decree passed in such a case was a nullity. Whatever defect there might have been in the procedure adopted in the passing of such a decree in favour of the minor, that cannot have the effect of vitiating the decree which continues in tact as it was passed. (Para 6)
The provisions of O. 32, r. 7 were fully attracted into application with respect to the compromise which was entered into in this case, and yet no sanction of the court was obtained thereto before it was arrived at, and, therefore, the compromise is of a type which it should be possible for the minor to avoid if he chose to do so so. This is ofcourse subject to two important consideration namely that the person who wants to avoid the compromise is proved to be a minor where the fact sum of minority happens to be challenged and that he further proves that the compromise is vitiated because of some valid reasons such as for fraud or collusion or that the compromise is prejudicial to the interests of the minor. (Para 9)
Here was a decree which was in favour of a number of decree-holders of whom one, the appellant, was a minor. A compromise was then arrived at between the judgment-debtors and the counsel on behalf of the decree-holders and the former paid money in pursuance of it to the latter and the decree was accepted as having been fully satisfied and the execution application was dismissed as such. There was no sanction of the Court to the compromise as is required by O. 32, r. 7C P.C.
Held that if the minor makes his choice not to be bound by this compromise and to avoid it, it should be open to him to do so by an unequivocal act to that effect by any appropriate method. He may proceed by making a fresh execution application and repudiate the compromise on grounds of fraud or collusion or prejudice to his interest. (Paras 18 & 25)
2. The appellant along with the others obtained a decree against the respondents Babulal and others for Rs. 30,000/- together with interest and costs on the 17th January, 1953, in a suit for recovery of mortgage-money. The case of the appellant was that he was a minor at that time and continued to be so until some time after the 9th January, 1956. On the date last-mentioned, this decree was compromised during the course of execution proceedings which had been commenced on an application of the decree-holders dated the 9th February, 1953, and this compromise was arrived at between Sampat Raj, (who it may incidentally be mentioned is the grandfather of the appellant) counsel for the decree-holders, and the judgment-debtors, and the whole decree was settled for a sum of Rs. 29500/- only. On the 3rd March, 1956, the respondents paid this amount to the said Sampatraj as a result of which the execution application was dismissed in complete satisfaction of the decree by an order of the court of the same date. On the 2nd August, 1958, Narpat Raj appellant instituted a fresh execution application out of which the present appeal arises. His case was that he was a minor at the time the compromise came to be made and that the sanction of the court had not been obtained to the compromise as required by O. 32, r. 7. of the Code of Civil Procedure, and, further, that the total decretal claim amounted to much mere than the sum for which the compromise was arrived at (the decree-holder puts it at Rs. 59,000/- odd), and, therefore, the compromise was prejudicial to his interests and this is how he filed a fresh application for execution on the 2nd August, 1958, In a note appended to his application he stated that he was born on Bhadwa Vadi 14 of Smt. 1996 which corresponds to 12th September, 1939. Notices having been issued to the judgment-debtors of this application under O. 21, r. 22 C.P.C., they objected to the executability of the decree on the appellants application. A number of objections were raised; thus it was strenuously contended that the appellant was not a minor at the time of the suit or the passing of the final decree and that in any case he was not represented by a next friend at all material times with the result that he could not be rightly treated as party to the suit or the decree. It was further contended that the decree had been compromised and Sampatraj, grandfather of the appellant, who held a power on behalf of all the decree-holders had certified a complete adjustment of the decree to the execution court a sum of Rs. 29,500/- having been paid to him and the execution proceedings were dismissed in complete satisfaction, and, therefore, there was no subsisting decree which could be executed any further and the court had no jurisdiction to execute the same. Yet another contention was raised to the effect that O. 32, r. 7 C.P.C. was not attracted in this case at all, and that in any case it was utterly wrong to say that the compromise was not in the interest of the minor.; It deserves to be noted that soonafter the objections of the judgment-debtors were filed, the case was posted for arguments straightaway without any issues having been framed on the material points at which the parties were at variance and without any evidence having been recorded. By his order dated the 25th August, 1959, the learned District Judge Pali who was the executing court dismissed the appellants application as not maintainable. It is against this order that the present appeal has been filed.
3. At this stage we should like to state briefly the findings of the learned District Judge, which led to the dismissal of the application of the appellant. In the first place, he found that the compromise which was entered into between the parties was not void but was only voidable at the instance of the minor; but in spite of that as
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