JUDGMENT

Davis, J C - This is an application in revision against an order of the Subordinate Judge, Mirpurkhas, directing a decree to be drawn up in terms of an award passed in arbitration proceedings. The objection taken before us was that in this suit there were two sets of minors. There were on the one hand the minor plaintiffs, four children, the sons of one Sunhi by her husband Tahir deceased, and on the other hand three minor defendants, sons and heirs and legal representatives of one Takhatram deceased, who in this case was a mortgagee of the property in suit, three shops. It was contended on behalf of the plaintiffs that there was a mortgage by way of conditional sale; on behalf of the defendants, that, it was an out and out sale. The matter was referred to arbitration and an award was given that same day by one Parehomal Naumal, a Hindu Lohana, zamindar, described as a Mukhi of Dhoro Naro and by his award the minor plaintiffs were deprived of their property on payment by defendant 4 of Rs. 500 because, for reasons not clear from the record, the three minor defendants were, sis the favourite phrase goes, "given up" by the plaintiffs. But we are not concerned with the minor defendants in these proceedings because under Order 32, Rule 7, Civil P.C., which, we think, is the relevant order and rule in this case agreements or compromises made in contravention of the provisions of Order 32, Rule 7 Sub-rule (1) are voidable against the parties other than the minor. We have before us an application only on behalf of the minor plaintiffs. But it is said that we should not interfere in revision because there has not been any irregularity in the exercise by the Subordinate Judge of his jurisdiction because Order 32, Rule 7 does not apply to agreements to refer to arbitration in suits in Courts. Our attention has been invited to a judgment of this Court in Umer v. Mt. Dadli A.I.R. (1926) Sind 128 where it is said a Bench of this Court has ruled that the.

provisions of Order 32, Rule 7, Civil P.C., do not control the provisions of Para. 1, Schedule 2 and it is not therefore necessary for the guardian of a minor party to obtain the express leave of the Court before agreeing to a reference to arbitration being made by the Court.

2. But reference to that case will show that the decision did not rest upon that point and that one learned Judge said that the point was doubtful and therefore when the other learned Judge agreed with him, we must take it that he said it was doubtful too: therefore as the remarks on this point may be considered obiter, we are free, we think, to deal with this matter untrammelled by this particular ruling and it appears to us that this case itself is a clear illustration of the necessity, if the law permits, of reading Order 32, Rule 7 as controlling Para. 1 of Schedule 2. For, we cannot but believe that if the learned Judge in this case had acted in accordance with the provisions of Order 32, Rule 7, none of the difficulties which have arisen in this case would have arisen at all. For instance, the application to refer does not show that the plaintiffs are minors, though, if the learned Judge had referred to the title of the suit this would have been apparent to him. We have no doubt that if the law as laid down by this Court had been that Order 32, Rule 7 does apply to proceedings to refer to arbitration, the learned Judge would have made some more careful inquiry into this matter and made a more careful order than he has done. We ourselves see no reason why the clear words of Order 32, Rule 7 should not apply to an agreement to refer to arbitration. Sub-rule 1 of Rule 7 is as follows:

No next friend or guardian for the suit shall, without the leave of the Court, expressly recorded in the proceedings, enter into any agreement or compromise on behalf of a minor with reference to the suit in which he acts as next friend or guardian.

3. But now there is an additional safeguard to the interests of the minors provide