Abhimanyu Misra, J. - (1.) KAUSALYA is the daughter of Jasoda. They filed T.S. No. 271 of 1956 in the Court of Munsif, Berhampur against the Appellants as Defendants for permanent injunction restraining them from entering upon the disputed lands. Kausalya being a minor was represented through the mother as the next friend. Defendants contested the suit asserting that they were in possession of the disputed lands and that the suit for permanent injunction was not maintainable. On 11 -5 -1961 there was a compare. The compare petition contained the following terms: (i) Plaintiff No. 1 (Kausalya) would be the absolute owner of the suit properties and Shamagha Pradhan, son of Bayya Pradhano would hold and manage the suit properties as trustee on her behalf until she attained majority whereafter she would hold and take possession of the properties from the trustee with absolute rights. (ii) Plaintiff No. 2 (Jasoda) and the Defendants gave up their claims to the suit properties. (iii) Shamaghana would take the responsibility of performing the marriage of Kausalya. On 13 -5 -191, the learned Munsif passed an order that the recitals in the compare petition relating to interim management of the properties by Shamaghana and the obligation cast on him for the performance of marriage of Plaintiff No. 1 were foreign to the suit and would not be embodied in the decree. Despite this order the decree was drawn up on 27 -6 -1961 containing the usual form that the compare petition would constitute a part of the decree. Appellant No. 2 filed an application under Section 152 Code of Civil Procedure for amendment of the decree to bring it in conformity with the judgment dated 13 -5 -1961. This prayer was allowed on 24 -11 -1962 and the decree was amended. After the amendment, the decree was substantially to the effect that the Plaintiff No. 1 was declared to be the absolute owner of the suit properties and the Defendants gave up their claim to the same.' On 13th of July, 1963, Shamaghana levied the present execution for delivery of possession of the disputed lands as next friend of the minor Kausalya. No steps were taken to retire Jasoda from the suit. Jasoda in her turn also did not take any steps to procure a fit person to be put in her place. Thus Shamaghana filed the execution application without the leave of the Court and without following the procedure prescribed in Order 32, Rule 8, Code of Civil Procedure Code. The Appellants challenged the validity of the execution proceeding under Section 47, Civil Procedure Code, on the ground that the provision of Order 32, Rule 8 not having been complied with, the execution at the instance of Shamaghana was not maintainable and the decree being declaratory in nature was incapable of execution. The learned Munsif upheld the first objection in M.J.C. No. 179/63 and held' that the execution application at the instance of Shamaghana was not maintainable. In appeal the learned Subordinate Judge, however, held that the execution was maintainable. Against the appellate order the miscellaneous Second appeal has been filed.
(2.) MR . Rath advanced two contentions:(1) the next friend Jasoda could not retire without first procuring a fit person to be put in her place and giving security for the costs already antifraud. An application for appointment of new next friend is to be supported by an affidavit showing the fitness of the person proposed and that she has no interest adverse to that of the minor and no such affidavit having been filed, the execution at the instance of Shamaghana is not maintainable, and (2) the decree under execution is declaratory in nature and is incapable of execution. Order 32, Rule 8, Code of Civil Procedure is as follows: 8. Retirement of next friend:(1). Unless otherwise ordered by the Court, a next friend shall not retire without first procuring a fit person to be put in his place and given security for the costs already incurred. (2) The application for the appointment of a new next friend shall be supported by an affidavit showing the fitness of the person proposed, and also that he has no interest adverse to that of the minor. This provision is mandatory and unless it is complied with Jasoda continued to be the next friend of the minor. The execution proceeding is a continuation of the suit. It is not disputed that Jasoda made no application to the Court that Shamaghana would act as the next friend in her place and for giving security for the costs already incurred. There was no application also for the appointment of Shamaghana, the new next friend showing his fitness and he had no interest adverse to that of Kausalya. The first contention must prevail. The execution application is not maintainable at the instance of Shamaghana as the next friend of Kausalya.
(3.) THE second contention is that the decree under execution is a declaratory decree and is incapable of execution. To appreciate this contention it would be pertinent to analyse the nature of the decree ultimately passed after amendment. It declared that Kausalya has absolute title to the disputed properties. Nothing was specifically stated in the decree regarding possession. An that was stated was that the Defendants gave up their claims to the suit properties. What were the claims of the Defendants do not appear from the decree which merely rites the claims of the Plaintiff. Plaintiff's claim was for permanent injunction for restraining the Defendants from interfering with their possession and enjoyment of the land. The prayer for injunction necessarily implies that the Plaintiffs' claim was that they were in possession of the disputed lands. It is well know that in order to understand the decree w here it is not clear on the face of it, the pleadings and, judgment can be referred to See Seth Manakchand v. Chaube Manoharlal and Anr. : A.I.R. 1944 P.C. 46 On a look into the written statement it appears that Defendants also claimed title and possession. When in the compare decree the Defendants stated that they gave up their claims to the suit. properties it meant that they gave up their claims both to the title and to the possession. Giving up claims to possession not necessarily mean that in fact possession was parted with. There should have been a clear term in the decree as to how Kausalya, Plaintiff No. l' would get possession from the Defendants when the contest as to which party was in possession was not determined in dispute after trial: On the face of the decree it cannot be said whether the Plaintiffs or Defendants were in actual possession of the disputed lands. This being the nature of the decree it is now necessary to examine whether it is capable of execution; in other words, whether under the terms of the decree the Plaintiff No. 1 can ask for recovery of possession through the executing Court. That leads to an examination of the question as to what is declaratory decree.;