Ganesh Chandra Das v. Jogendranath Nayaban — 1942 DIGILAW 189 (CAL)

JUDGMENT Sen, J. - This appeal arises out of a suit for setting aside a compromise decree and a sale in execution thereof. The trial Court set aside the sale in execution but refused to set aside the compromise decree. There was an appeal and a cross-objection. The learned Subordinate Judge has upheld the decision of the trial Court refusing to set aside the decree but he has reversed the decision of that Court by which the sale was set aside and he has maintained the sale. Against this decision the Plaintiffs have appealed. The material facts which need be stated briefly are these: The Plaintiffs are Ganesh Chandra Das and his brother Kartick Chandra Das. The latter is a minor and is represented by his mother as next friend. There was a suit instituted against these two brothers for rent with respect to two plots of land. The mother was appointed guardian ad litem in that suit. The Plaintiffs in that suit claimed that Ganesh and Kartick were tenants with respect to two plots of land and that they were liable to pay rent at the rate of Rs. 6 per annum. The suit ended in a decree upon compromise. Ganesh and Kartick were made liable to pay rent at the rate of Rs. 4 per annum and were given three installments. The records of the Court which decided that suit show that the guardian ad litem applied before the learned Munsif for leave to compromise the suit on behalf of the minors and that Court granted leave to the guardian to compromise the suit and recorded an order to that effect in accordance with the provisions of Or. 32, r. 7. Thereafter there was another suit for rent on the basis of this decree and it was decreed ex parte. This compromise decree was put to execution and certain properties of the present Plaintiffs were put up to sale and purchased by a stranger to the suit. The Plaintiffs applied under Or. 21, r. 90, for setting aside the sale but that application was refused. The Plaintiffs then instituted the present suit for setting aside the compromise decree and sale. This compromise decree was put to execution and certain properties of the present Plaintiffs were put up to sale and purchased by a stranger to the suit. The Plaintiffs applied under Or. 21, r. 90, for setting aside the sale but that application was refused. The Plaintiffs then instituted the present suit for setting aside the compromise decree and sale. The grounds for setting aside the compromise decree were that it was obtained by fraud, that the guardian ad litem had no idea of the terms of the compromise and that the summons in that suit for rent had been suppressed. In the alternative, it was claimed that the compromise decree was liable to be set aside on the ground that it was not for the benefit of the minor. As regards the sale in execution the ground for setting it aside is this: The Plaintiff Ganesh was described in the execution proceedings as a major whereas he was still a minor. He was not represented by any guardian in the execution proceedings and it is argued that this has vitiated the sale. 2. I shall take up for consideration first the question whether the Courts below were right in refusing to set aside the compromise decree. They have found that the Plaintiffs' case regarding fraud upon the guardian is false. They have found that summonses were duly served and that the guardian was fully aware of the terms of the compromise. Against these findings of fact the learned Advocate for the Appellants very properly did not urge anything. He contended however that the decree was liable to be set aside inasmuch as the Court granting leave to compromise the suit did not state in its order that the compromise was for the benefit of the minors. He contended further that if the facts are looked into it will be found that the compromise was not for the benefit of the minors. He next contended that the guardian had been grossly negligent in compromising the suit and that this was a sufficient ground for having the decree of compromise set aside. 3. Now, it is quite true that the learned Munsif who passed the compromise decrees did not state in so many words that the compromise was for the benefit of the infants. 3. Now, it is quite true that the learned Munsif who passed the compromise decrees did not state in so many words that the compromise was for the benefit of the infants. The learned Advocate for the Appellant relies on the cases of Suresh Chandra Saha Chowdhury v. Jogendra Nath Saha Chowdhury 46 C.L.J. 441 (1927) and Barada Prosad Sukul v. Sahan Lal Boid ILR [1937] 1 Cal. 586. On behalf of the Respondents reliance was placed upon the cases of Midnapore Zemindary, Ltd. v. Gobinda Mahto 8 C.L.J. 31 (1907) and Krishna Pershad Roy v. Romes Chunder Mandol 13 C.W.N. 163: s.c. 8 C.L.J. 274 (1908). Before dealing with the cases on the subject it will be better to examine the relevant provisions in the CPC which deal with this matter. The procedure laid down in Or. 32, r. 7 is in these terms: (1) 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. (2) Any such agreement or coin promise entered into without the leave of the Court so recorded shall be voidable against all parties other than the minor. 4. Now, it is clear that the rule itself does not require that the Court should append a certificate that the compromise is for the benefit of the minor. All that the rule says is that before a suit in which a minor is concerned can be compromised, the leave of the Court must be taken and the Court must expressly record the granting of such leave. It says further that if a compromise is entered into without such recorded leave being taken, then the decree is voidable at the instance of the minor. In my opinion, it would be adding something to the rule which is not there if one were to say that the Court must in every instance expressly record that it is of opinion that the compromise is for the benefit of the minor. There can be no doubt that the law is that the Court must not giant leave to a guardian to compromise a suit on behalf of the minor unless it is satisfied that the compromise is for the benefit of the minor. There can be no doubt that the law is that the Court must not giant leave to a guardian to compromise a suit on behalf of the minor unless it is satisfied that the compromise is for the benefit of the minor. That is clear law and it is established by a long series of decisions; but it cannot be said that the CPC requires that this opinion of the Court must be expressly recorded. On the other hand, the rule dealing with this matter makes it obligatory upon the Court only to record the fact that it has granted leave. If the cases relied upon by the learned Advocate for the Appellants are read with reference to the facts therein it will be found that no such general rule was being laid down as is suggested by him. What the decisions relied upon by him amount to is this: Where there are circumstances which indicate that the Court did not consider the question whether the compromise was for the benefit of the minor or not and granted leave, then, even though the provisions of Or. 32, r. 7 have been formally complied with by recording the leave, the compromise decree would be voidable at the option of the minor. But where there are no special circumstances which show that the Court did not bear in mind the fundamental principle that no compromise of a suit in which a minor is concerned should be permitted unless the compromise is for the benefit of the minor and where the Court has complied with the provisions of Or. 32, r. 7, by recording the fact that it has given leave to the guardian to compromise the suit, the compromise decree cannot be avoided by the minor. This view finds support in the cases relied upon by the learned Advocate for the Respondents. In the case of Midnapore Zemindary Co., Ltd. v. Gobinda Mahto 8 C.L.J. 31 (1907), Mr. Justice Woodroffe made the following observation regarding this point. Then, it has been objected that there is nothing to show that the Court considered whether or not the decree was for the benefit of the minors. In the case of Midnapore Zemindary Co., Ltd. v. Gobinda Mahto 8 C.L.J. 31 (1907), Mr. Justice Woodroffe made the following observation regarding this point. Then, it has been objected that there is nothing to show that the Court considered whether or not the decree was for the benefit of the minors. Here again, there is no order which states in so many terms that the Court has considered the matter and found that the compromise was for the benefit of the minors; but we find that on the 8th August, 1899, an order was recorded under which permission was given to compromise the case for the minor Defendants. I think it must be assumed, in the absence of any evidence to the contrary, that the Court did its duty in the matter and was satisfied, before giving permission, that the compromise was for tile benefit of the minors concerned. 5. The same view was taken in the case of Krishna Pershad Roy v. Romes Chunder Mandol 13 C.W.N. 163: s.c. 8 C.L.J. 274 (1908). At page 278 the learned Judges made the following observation: Now, as to this, we may observe in the first place that none of the above rulings were apparently considered or cited at the Bar; that permission was given to compromise and not merely to file a petition, and that we entirely agree with the principle that when the Court permits a compromise, it must be presumed, in the absence of evidence to the contrary, that it gave due consideration to the matter. 6. In the case of Suresh Chandra Saha Chowdhury v. Jogendra Nath Saha Chowdhury 46 C.L.J. 441 (1927) the Court did not grant permission to the guardian to compromise. The Court granted permission to the guardian merely to file a petition of compromise. There were other circumstances also in that case which indicate that the Court did not at all consider the question of whether or not the compromise was for the benefit of the minors. In the case of Barada Prosad Shukul v. Sahan Lal Bold ILR [1937] 1 Gal. 586, Mr. Justice Edgley recognises the principle laid down by Mr. There were other circumstances also in that case which indicate that the Court did not at all consider the question of whether or not the compromise was for the benefit of the minors. In the case of Barada Prosad Shukul v. Sahan Lal Bold ILR [1937] 1 Gal. 586, Mr. Justice Edgley recognises the principle laid down by Mr. Justice Woodroffe in the case of Midnapore Zemindary Co., Ltd. v. Gobinda Mahto 6 C.L.J. 31 (1907) and he said that in ordinary circumstances when the Court records an order to the effect that a compromise has been allowed, it may be assumed, unless there are clear indications to the contrary, that the Court has exercised its judicial discretion in dealing with the matter but he says that where the circumstances are peculiar or suspicious and show that the Judge has not considered the interest of the minors then the decree is liable to be set aside. 7. Now, in the present case there is nothing to show that the learned Munsif did not apply his mind to the terms of the compromise or that he did not consider whether or not it was for the benefit of the minors. The terms were before him and there were lawyers on both sides and it seems that after considering the terms and after hearing the lawyers he granted the leave. In these circumstances, I must assume that the learned Munsif did consider the question whether or not the compromise was for the benefit of the minors and came to the conclusion that it was for their benefit. The learned Advocate for the Appellants endeavoured to show from certain facts that the minors were not benefited by the compromise. These points have been considered by both the Courts below and they have found that the compromise was for the minors' benefit. In my opinion, it is not necessary for me to decide whether or not the compromise was for the minors' benefit. That was a matter which the Court granting leave should decide and if it has decided the matter it is not open to this Court to revise that decision. Moreover upon the facts placed before me the compromise appears to be for the benefit of the minors. The record of rights was against them and one must always take into consideration the uncertainties of litigation. Moreover upon the facts placed before me the compromise appears to be for the benefit of the minors. The record of rights was against them and one must always take into consideration the uncertainties of litigation. The minors were given installments and the amount of rent decreed was less than that claimed. In these circumstances, I am of opinion that the decree cannot be set aside on the ground that the Court which passed it had not considered whether or not it was for the benefit of the minors. 8. As regards the alleged negligence of the guardian, there is no substance in the argument of the learned Advocate for the Appellants. The same "negligent" guardian is prosecuting the present suit. I am not satisfied that there has been any negligence proved. The decision of the Court below that the decree cannot be set aside must in my opinion stand. 9. There remains the question of the sale in execution of the decree. It is true that one of the Plaintiffs, namely, Ganesh, was described as a major in the execution proceedings whereas he was then a minor. But at the time when the sale was held Ganesh had attained majority. In my opinion, the fact that Ganesh was not formally represented by a guardian during his minority at one stage of the execution proceeding was a mere irregularity and cannot affect the sale. The provisions of Or. 32 R Order 32 Rule 1 do not in terms apply to execution proceedings. This has been laid down in the case of Fani Bhusan Bhuian v. Surendra Nath Das 35 C.L.J. 9 (1921). What the Court has to see in execution proceedings is whether the minor is sufficiently represented and in doing so the Court is at liberty to look at the substance of the proceedings. In the present case the Plaintiff Kartick who is a minor was represented by his mother as guardian. She was the guardian of Ganesh also in the suit and there was no necessity to have any fresh guardian appointed for Ganesh in the execution proceedings as the appointment made in the suit enured in the execution proceedings. Ganesh was in fact and in substance represented by a guardian in the execution proceedings but he was wrongly described as a major. Ganesh was in fact and in substance represented by a guardian in the execution proceedings but he was wrongly described as a major. In any event he attained majority at the time of the sale and in my opinion, the sale cannot be set aside on the ground that he was represented to be a major although he was a minor at the earlier stage of the execution proceedings. Again, it seems to me that no suit lies to set aside the sale. The Plaintiffs applied to have the sale set aside on this very ground under Or. 21, r. 90 and they failed. The provisions of Or. 21, r. 92 make it clear that no suit would lie to set aside an order made under Or. 21, r. 90 by any person against whom such order is made. It is argued on behalf of the Appellants that the application to set aside the sale was not really under Or. 21, r. 90 but under sec. 47. Even if that be so no separate suit would lie to set aside an order passed under sec. 47 on the ground that the order was erroneous. In these circumstances, the decree of the Court below must be uphold and this appeal must be dismissed with costs.