Judgment Choudhary, J. 1. This appeal by defendants Nos. 2 and 3 arises out of an order of the Subordinate Judge, Dhanbad, passed in Title Suit No. 13 of 1950 postponing the consideration of the compromise petition till the final hearing of the suit. 2. In order to understand the true position of the case, it is necessary to give a short genealogy: GHELABHAI PARMAR | ______________________________________________ | | | Devji= Damji= Lakhamsi= | Widow Rudi Bai | Widow (Deft.1) | (Deft. 5) | Lalibai | wife Saker Bai | | (Deft. 3) | (Pltf. 4) | | | | | | Ramniklal, Minor Gobardhan Das | (Deft. 4) (Deft. 2) | | | ____________________________________ | | | Morarji Gangji, Minor Amritlal, Minor (Pltf. 1) (Pltf. 2) (Pltf.3) 3 The plaintiffs, namely the three sons and the wife of Lakhamsi, brought a suit for partition of their joint property against their co-sharers, namely, Lakhamsi, defendant No. 1, Gobardhan Das and Lali Bai the son and the widow of Damji, defendants Nos. 2 and 3, and Ramniklal and Rudi Bai, the son and the widow of Devji, defendants Nos. 4 and 5. Defendant No 6 was a stranger to the family and was made a party because certain property alleged to be of the joint family stood in his name. On 21-12-1950, the plaintiffs and defendants Nos. 1 to 3 filed an application in the court compromising the suit. On the 23-12-1950, a petition was filed on behalf of plaintiff No. 4 as mother and guardian of the minor plaintiffs Nos. 2 and 3 for permission to compromise the dispute as the terms thereof were favourable to the interest of the minors. Defendants Nos. 4 and 5 objected to the recording of the compromise and they filed an application on 3-1-1951, for being transposed to the category of the plaintiffs and to be allowed to carry on the suit in that capacity. The Court below allowed defendant Nos. 4 and 5 to be transposed to the category of the plaintiffs and permitted them to proceed with the suit. With respect, to the compromise petition, however, it passed an order that it should be kept on the record and final order thereon would be passed at the time of the judgment in the suit. Against that order defendants Nos. 2 and 3 have come up in appeal to this Court. 4. With respect, to the compromise petition, however, it passed an order that it should be kept on the record and final order thereon would be passed at the time of the judgment in the suit. Against that order defendants Nos. 2 and 3 have come up in appeal to this Court. 4. A preliminary objection has been raised that no appeal lies against the order in question. Under Order 43, Rule 1, Clause (m) an appeal lies from an order passed under Order 23, Rule 3, C. P. C., recording or refusing to record a compromise. The order in question, however, is not an order either recording or refusing to record the compromise. It is only an order postponing the decision of the matter till a further date, and, therefore, in my opinion, no appeal lies I against that order. But in the view we propose to take of the nature of the order passed by the learned Subordinate Judge, we are treating the memorandum of appeal as an application in revision. 5. The order of the Court below postponing the determination as regards the recording of the compromise is, in my opinion, not a proper order. It is highly undesirable that the parties who had compromised the suit should be kept in suspense in regard to the recording of the compromise till the final hearing of the suit which might take a very long time. It was the duty of the Court below, on the compromise having been filed before it, to consider it and pass an order either recording it or refusing to record it as, in its opinion, the case might be. In not doing so, and in postponing the consideration of the matter till the hearing of the suit, it has acted with material irregularity in the exercise of its jurisdiction. In that view of the matter, the case has to be remanded to the Court below for considering whether it should record or refuse to record the compromise. 6. It has, however, been brought to our notice, and is admitted by the parties, that after the appeal was filed in this Court an application was made before the learned Subordinate Judge by the original plaintiffs Nos. 6. It has, however, been brought to our notice, and is admitted by the parties, that after the appeal was filed in this Court an application was made before the learned Subordinate Judge by the original plaintiffs Nos. 1 to 4 stating that the terms of compromise were highly injurious to their interest, were not at all for their benefit and that they suffer irreparable loss and injury if the compromise would be recorded. They also prayed that the petition of compromise be rejected and they be allowed to proceed with the suit. As the compromise and the relevant papers are before this Court, that application is still pending in the Court below. The position, therefore, now is that Saker Bai, the original plaintiff No. 4 who entered into the compromise on behalf of her minor sons, plaintiffs Nos. 2 and 3, and sought permission of the Court to enter into the compromise has now rescinded from it and does not want the Court to give any permission for compromise. Mr. Harians Kumar appearing for these minor plaintiffs in this Court as Deputy Registrar guardian has also taken up the position that the compromise is not to the benefit of his clients. It is, therefore, to be considered as to whether a Court can force the guardian to enter into the compromise if after entering into it and having sought the permission of the Court to enter into it and before the recording of the compromise, the guardian has changed the position, resiled from the agreement and has filed an application in the Court to the effect that the compromise, not being in the interest of the minors, should not be recorded. In -- Rang Rao V/s. Rajagopala Raju, 22 Mad 378 (A), the guardian ad litem of the minors having agreed to compromise a suit and having signed a petition embodying the terms arrived at, undertook to present the petition at the next sitting of the Court. Leave of the Court had not been obtained; and at the time appointed the guardian declined to present the petition and opposed a decree being passed in its term. The plaintiff sought to have the compromise endorsed. Leave of the Court had not been obtained; and at the time appointed the guardian declined to present the petition and opposed a decree being passed in its term. The plaintiff sought to have the compromise endorsed. It was held that the guardian having objected to the passing of a decree in terms of the compromise, the Court had no power to enforce it even though the terms of it might appear to be beneficial to the minors. In this case, however, the compromise petition had actually been filed in the Court and the Court had not given permission to compromise, but, in my opinion, that does not make any difference. At the time when the compromise is to be recorded if the guardian takes up the position that the compromise is not for the benefit of the minors. I do not see how the Court can enforce it as against the minors. In --Gulab Dei V/s. Vaish Motor Co., AIR 1925 All 570 (B), it was held that where before any leave had been granted, the guardian himself changed his mind and did not want the compromise, it was impossible to force the compromise on the minor. In --Hemangini Dasi V/s. Bhagwati Sundari Dasi, AIR 1923 Cal 685 (C), it was held that although the Court can and must approve of a compromise on behalf of infants, it cannot and will not force one upon them against the opinion of their next friend or guardian ad litem in the action. If a Court finds that a guardian or next friend is acting improperly and against the infants interest in refusing to assent to an arrangement which appears clearly beneficial to them, steps might be taken to remove him and substitute some other person as guardian. 7. On the authorities discussed above it is clear that if the guardian resiles from the compromise before it is recorded, the Court has no jurisdiction to record the same. In this view of the matter, the Court below will have to consider the petition filed on behalf of the original minor plaintiffs repudiating the compromise at the time of considering as to whether the compromise should be recorded or not. 8. According to the terms of the compromise a sum of Rs. 75,000 is alleged to have been paid to the original plaintiffs and defendant No. 1 by defendant No. 2. 8. According to the terms of the compromise a sum of Rs. 75,000 is alleged to have been paid to the original plaintiffs and defendant No. 1 by defendant No. 2. It has been argued on behalf of the petitioners that the original plaintiffs could not be permitted to retain that sum of Rs. 75,000 and to repudiate the compromise at the same time, It is contended that before they could be allowed to be heard with regard to their repudiation of the compromise, they must pay that sum of Rs. 75,000 to defendant No. 2. Under Order 32 Rule 6, Civil P. C., a next friend or guardian for the suit shall not, without the leave of the Court, receive any money on behalf of a minor by way of compromise before decree or order. Therefore the Interest of the minors cannot be allowed to suffer because of the payment having been made to the guardian. It is not possible for us to say that until the guardian pays back the money the interest of the minors will not be safeguarded. But so far as the repudiation of the compromise by the original plaintiffs Nos. 1 & 4 and defendant No. 1, who are majors, is concerned, equity demands that they should not be allowed to raise the question of repudiating the compromise while retaining the benefit under that compromise; or, in other words, so far as they are concerned, they will not be allowed to be heard to repudiate the compromise on any ground until they pay back to the defendant No. 2 the money that they have received from him under the terms of the compromise. In this connection it was stated before us on behalf of the original plaintiffs that subsequent to the compromise they have paid to defendant No. 2 a sum of about Rs. 50,000 as the price of one-third share in Cutch properties which under the terms of the compromise defendant No. 2 had to transfer in favour of the plaintiffs. If that be so, then certainly the original plaintiffs Nos. 1 and 4 and defendant No. 1 are entitled to deduct the price of the Cutch properties from the amount that they have to pay to defendant No. 2 as indicated above. If that be so, then certainly the original plaintiffs Nos. 1 and 4 and defendant No. 1 are entitled to deduct the price of the Cutch properties from the amount that they have to pay to defendant No. 2 as indicated above. The parties will be given opportunities to prove the amount of payment by them and the Court will work out the equities between them in making an order for the payment of the amount to defendant No. 2 lay the original plaintiffs Nos. 1 and 4 and defendant No. 1. 9. In the result, the application succeeds, the order of toe Court below is set aside and the case is remanded to it with a direction to consider the question of recording the compromise along with the petition filed by the original plaintiffs for repudiating the same in the light of the observations made above. Costs will abide the result. Hearing fee, Rs. 32. Reuben, J. 10 I agree.