NARPAT RAJ Vs. BABULAL

JUDGEMENT

(1.) THIS is an appeal by the decree-holder Narpat Raj in an execution matter and arises under the following circumstances.

(2.) THE appellant along with two 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 Sampat Raj 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 Order 32, Rule 7 of the Code of Civil Procedure, and, further, that the total decretal claim amounted to much more 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 bora on bhadwa Vadi 14 of Section 1996 which corresponds to 12th September, 1939. Notices having been issued to the judgment-debtors of this application under order 21 Rule 22 Civil Procedure Code, they objected to the executability of the decree on the appellant's 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 a party to the suit or the decree. It was further contended that the decree had been compromised and sampat Raj, grand-father 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 raissd to the effect that Order 32 Rule 7 Civil Procedure Code 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 soon after the objections of the judgment-debtors were filed, the case was posted for arguments straightway 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 appellant's 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 the compromise in question had been entered into during the course of execution proceedings, the minor was competent to challenge the discharge by an application under Section 47 Civil Procedure Code and it was not necessary for him to bring any separate suit to have the compromise set aside. In the second place, the learned Judge held that as the compromise was voidable at the option of the minor, the burden to successfully avoid the discharge lay upon him and consequent-ly the latter should have alleged and proved fraud or collusion to invalidate the contract. The learned Judge then went on to find that neither any such allegation had been made by the minor nor was there any proof on the record to support the same. According to the learned Judge, the only ground upon which the minor wished to displace the compromise was that no previous sanction of the Court had been obtained for the making of the compromise and that it was not in his interest. On the point of the compromise not having been made in the interest of the minor, the learned Judge seems to have entertained the view that as the compromise was made on behalf of the decree-holders by the grand-father of the appellant who also represented the latter's father Dhan-patraj in the suit as well as the execution proceedings, (Dhanpatraj being one of the two other decree-holders), there was a presumption that what was considered in the interest of the father was also in the interest of the minor. In the third place, the learned Judge held that although narpat Raj was described as a minor in paragraph nine of the plaint, he was not so described in the title thereof and further he did not sue through any next friend, and the decree was also passed in favour of Narpat Raj appellant without there being any next friend for him. The learned Judge then relied on Order 32 Rule 1 Civil Procedure Code which lays down that every suit by a minor shall be instituted in his name by a person who in such suit shall be called the next friend of the minor, and holding that this provision was mandatory concluded that there was a clear breach of it in the present case, and, therefore, the resultant position in law was that Narpatraj "should be treated as non-existent in the panel of plaintiffs". In this view of the whole matter, the learned Judge came to the conclusion that the execution application filed by Narpatraj was not maintainable and he dismissed it.