A minor can file a suit to set aside a compromise decree entered into by his guardian during his minority if he can show that his interest was prejudiced by the compromise or that the compromise was obtained through misconduct or gross negligence on the part of his next friend or guardian.

( 1 ) A suit for cancellation of compromise decree dated 29. 9. 1972 in Case No. 675/391 under section 229b of the U. P. Zamindari Abolition and Land Reforms Act was filed by the plaintiff-respondent No. 3 in which issue No. 5 was framed with regard to the maintainability of the said suit. By the order dated 16. 7. 1962 the said issue was decided in favour of the plaintiff--defendant filed a Civil Revision No. 196 of 1982. By judgment and order dated 20. 11. 1982, the said revision was dismissed. It is against these orders the present writ petition was filed.

( 2 ) ORDER XXXII of the Code governs the procedure in suit in which minor is involved. A minor neither can sue nor can be sued without the next friend who is supposed to furnish security when so ordered by the Court and normally the Court appoints proper person as guardian of the minor. All these provisions have been engrafted to secure the interest of the minor. If such interests are not secured or in the event that the next friend of the guardian had interest adverse to that of the minor, in that event such decree is liable to be set aside. Rule 3a of Order XXXII provides in sub-rule (1) that even if the next friend or guardian has interest adverse to the minor the same would not be a ground for reversing the decree unless such an adverse interest of the next friend or guardian prejudices the interest of the minor. However, sub-rule (2) provides that nothing in this rule shall preclude minors from obtaining any relief available under any rule by reason of misconduct or gross negligence on the part of next friend of the suit resulting any prejudice to the interest of the minor.

( 3 ) IN the present case, this Court is called upon to decide as to whether a suit by a minor to set aside decree through compromise under Order XXIII, Rule 3 of the Code could be maintainable. Inasmuch as Order XXIII, Rule 3a provides that "no suit shall lie to set aside the decree on the ground that compromise on which decree is based was not lawful. "

( 4 ) RELYING on this provision, it is contended on behalf of defendant that the present suit by the minor after having attained majority to set aside the compromise decree is not maintainable.

( 5 ) ORDER XXIII, Rule 1 of the Code provides for withdrawal of the suit or abandonment of part of the claim. Proviso to sub-rule (1) of Rule 1 provides that unless provisions contained in Rules 1 to 4 of Order XXXII of the Code are satisfied, no suit or any part of the claim of the minor shall be abandoned without leave of the Court. Sub-rule (2) provides how such leave is to be applied for.

( 6 ) ORDER XXIII. Rule 3 of the Code which deals with recording of compromise of the suit provides that where it is proved to the satisfaction of the Court that by any lawful agreement or compromise which is in writing and signed by the parties, that the suit has been adjusted wholly or in part, the Court may record such compromise and pass a decree in accordance therewith. It also provides that where defendant satisfies the plaintiff in respect of whole or any part of subject-matter of suit the Court shall order such agreement, compromise or satisfaction to be recorded and pass a decree in accordance therewith. Now recording of compromise and passing of the decree in both the above contingencies are to be recorded or decree to be passed so far as it relates to the parties to the suit.

( 7 ) THUS, the question is to be decided in relation to the parties to the suit so far as it relates to the subject-matter which is sought to be put-forth as the basis of recording compromise, is a lawful agreement or compromise. Now lawful agreement as expressed in Rule 3 has been explained to the Explanation added thereto. The Explanation explains that an agreement or compromise which is void or voidable under Indian Contract Act, 1872, is deemed not to be lawful within meaning of this rule.

( 8 ) NOW the proviso to sub-rule (3) provides that if it is alleged that ad