Judgment 1. This second appeal is by the defendants against the judgment of affirmance. 2. The instant appeal involves a short point for consideration; The point involved is whether the minor defendants could avoid the compromise decree by filing an application in the suit itself or the remedy to the minors was only by way of a regular suit. 3. In order to decide the point involved, only a few facts need be stated. The plaintiffs (Chandeshwar Mahton and Bindeshwari Mahton) filed a suit for declaration of their title and confirmation of their possession or in the alternative for recovery of possession, in case they were found out of possession, in respect of the properties described in schedule of the plaint. The suit was contested by the defendants. The parties adduced evidence and closed their evidence. Argument was heard on 3-8-1962, and the case was adjourned for further argument on 4-8-1962. On 4-8-1962 a compromise was recorded in the terms as agreed between the major parties and the suit was decreed in full subject to the payment of certain amount by the plaintiffs in favour of the defendants by a certain fixed date. After compromise was recorded, on the same date, a petition was filed on behalf of the defendants to recall the order recording the compromise. The order was recalled on the same day and the case was adjourned to 6-8-62. As against the order recalling the earlier order recording the compromise, the plaintiffs preferred an appeal. The matter came up to this court in Civil Revision No. 1140 of 1962. This court set aside the order under revision and sent the case back to the trial court for a fresh consideration of the application filed by the defendants with certain directions. It observed as follows :- "I must however state that the learned Munsif will give effect to the compromise if he finds that no fraud was practised on the court. He will have jurisdiction to recall his previous order only if he finds that the compromise was recorded as a result of fraud on the court by either party." This court also observed that it would be open to the learned Munsif to make such enquiry and take such evidence as he thought proper. 4 When the matter went back to the lower court, an enquiry was held on the compromise matter. 4 When the matter went back to the lower court, an enquiry was held on the compromise matter. Both parties were allowed to adduced evidence. On 29-5-67 a petition was filed on behalf of one Smt. Chandrika Devi who was substituted as defendant No. 17 in place of Anandi Mahton, her minor son. This Chandrika Devi objected to the compromise being recorded under Order 23, Rule 3 of the Code of Civil Procedure (hereinafter to be referred to as the Code). The ground taken by Chandrika Devi was that the family of Mahabir Mahton and his sons had adverse interest against the family of Ram Prasad Mahton and his sons and so the same guardian could not represent the minor sons of Mahabir Mahton as also the minor sons of Ram Prasad Mahton and she challenged the appointment of guardian-ad-litem, in this background, as wholly illegal. Chandrika Devi also objected that guardian-ad-litem was negligent and did not look after the interest of the minors and so the minors were unrepresented at the time of the compromise and thus the compromise recorded was wholly unlawful. 5. On the next day, i.e., 30-5-67 another petition was filed by the defendants (major defendants) wherein they alleged that a fraud was practised upon the defendants as well as upon the court in getting an order from the court about the consent decree and on this ground, the defendants prayed that the compromise was fit to be set aside. 6. Again on 1-6-1967 another petition was filed on behalf of the minor defendants, i.e., defendant Nos. 14 to 16 (minor sons of Mahabir Mahton) through their natural guardian for setting aside the compromise and in this petition filed by the minor defendants it was contended that the provisions of Order 32, Rule 7 of the Code were not complied with and neither these minors nor their guardian had compromised the suit nor they were present in court on 4-8-1962 on the date of compromise and hence the compromise recorded was wholly unlawful and was fit to be set aside. It was further pleaded that the plaintiffs and their lawyers deliberately concealed from the court that there were minors also in the suit, just in order to obtain an order of compromise and hence a fraud was practised upon the court and the court, as fraud was practised upon it, did not apply its mind to the fact whether the compromise was for the benefit of the minors. 7. The plaintiffs filed rejoinders to these petitions and denied the allegation of fraud. The plaintiffs asserted that the defendants were present in court and the compromise was arrived at between the plaintiffs and the defendants and the compromise was recorded on representation of all the parties. The trial court allowed the parties to adduce evidence in support of their respective case and the trial court held, on a consideration of the evidence, that no fraud was practised upon the court and consequently the order recording the compromise did not need to be set aside and overruled the objection of the defendants. 8. Against the judgment of the trial court, only the major defendants, i.e., Mahabir Mahton and Dulari Devi preferred an appeal and the minor defendants (minor sons of Mahabir Mahton) were made respondent Nos. 14, 15 and 16 in the appeal before the lower appellate court under the guardianship of guardian-ad-litem. 9. All the other persons (parties to the suit) were made respondents in the appeal. 10. The court of appeal below dismissed the defendants appeal holding that the defendants had failed to prove fraud upon court and hence the compromise was a good compromise which could not be set aside. 11. It further held that even though the provisions of Order 32, Rule 7 of the Code were not complied with, the decree was not a nullity. 12. The lower appellate court also held as follows: - "There can be no doubt that the permission of the court was not obtained on behalf of the minors and the compromise was arrived at by the major plaintiff and the major defendants. It appears that there were minor plaintiffs as well as the defendants in the suit. In fact the court was not even informed that there were minors and the permission of the court was necessary before recording of the compromise. It appears that there were minor plaintiffs as well as the defendants in the suit. In fact the court was not even informed that there were minors and the permission of the court was necessary before recording of the compromise. The lawyer of the plaintiffs and the defendants who were present when the compromise was recorded, did not bring this fact to the knowledge of the court. The learned lower court held that this cannot be said to be a fraud practised on the court because the defendants who were represented by the lawyers at the time of recording of the compromise also did not bring it to the notice of the court and if it is a fraud, then the defendants were equally responsible for the fraud and now they cannot take advantage of their own fraud. In fact, a decree passed without complying the provisions of Order 32, Rule 7.C.P.C. cannot make the decree illegal, rather voidable at the instance of the minors as is expressly said in the provisions itself. Any such decree can be avoided by the minor by a separate proceeding. Though much is said about the non-compliance of the provisions of Order 32, Rule 7, C.P.C. but I find that the present appellant Mahabir Mahton is the father of some of the minor defendants but curiously the appeal is not filed on behalf of the minors. This itself indicates that the minors are not challenging decree as illegal by being drawn up on the basis of the compromise recorded. These two points are decided against the appellants." 13. Hence the present second appeal by the major defendants as well as by the minor defendants. 14. Though it will bear repetition, the minor defendants-appellants 3 to 5 had, on 1-6-67, filed an application before the trial court avoiding the compromise decree on the ground of non-compliance of the provisions of Order 32,Rule 7 of the Code and also on the ground of fraud as, according to these defendants also, the plaintiffs deliberately suppressed the fact from the court that there were minors also in the suit on the side of the plaintiffs as well as on the side of the defendants and that the compromise was not for the benefit of the minors. Question then arises - can the plaintiffs be allowed to take advantage of the fraud committed by them on the court? 15. Question then arises - can the plaintiffs be allowed to take advantage of the fraud committed by them on the court? 15. The court of appeal below, as it appears, on a perusal of the judgment as also from the quotation given above, only reiterated what the trial court had said on the question of fraud and has not given its own finding. It seems, the court of appeal below has not applied its judicial mind independently. It may be that a reading of the judgment gives an impression that it agree with the trial court but the court of appeal below does not say that it agreed with the trial court. There is yet another aspect of the matter that even though major defendants were present in the court on the date of compromise and the major defendants did not bring it to the notice of the court that there were minors also in the suit yet the plaintiffs were not absolved of their own duty/responsibility to inform the court that there were minors in the suit on the side of the plaintiffs as well as on the side of the defendants. The plaintiffs also suppressed the fact from the court that there were minors in the suit and that the compromise was only recorded between the major plaintiffs and major defendants. I hold that as the plaintiffs were not absolved of their own responsibility/ duty and as they deliberately suppressed this fact from the court, it was a fraud on the court. If the court would have been appraised of this fact, the court would not have recorded the compromise. Thus the finding that there was no fraud upon the court is not binding in the second appeal, as it is erroneous in law. The court of appeal below, it seems, agreed with the trial court that the defendants were equally responsible for the fraud. This itself shows that a fraud was, in fact, committed and it were also the plaintiffs who played fraud with the court. Only because the defendants were equally responsible for the fraud, it could not be held that no fraud was committed. 16. This itself shows that a fraud was, in fact, committed and it were also the plaintiffs who played fraud with the court. Only because the defendants were equally responsible for the fraud, it could not be held that no fraud was committed. 16. The lower appellate court accepted the following position (i) Permission of the court was not obtained on behalf of the minors and even then the compromise was arrived at by the major plaintiffs and major defendants (ii) The court was not even informed that there were minors and the permission of the court was necessary before recording the compromise (iii) The lawyers for the plaintiffs and the defendants who were present when the compromise was recorded did not being this fact to the knowledge of the court. Thus it accepted that the provisions of Order 32, Rule 7 of the Code were not complied with. It is true that the court of appeal below has correctly held that for non-compliance of the provisions of Order 32, Rule 7 of the Code, the decree was not a nullity. It is well settled that the effect of the failure to comply with the provisions of Order 32, Rule 7(1) of the Code is provided by Order 32, Rule 7(2) of the Code which says that any such agreement or compromise entered into without the leave of the court so recorded shall be voidable against all parties other than the minor. The rule means that the impugned agreement can be avoided by the minor against the parties who are major and that it cannot be avoided by the parties who are major against the minors. It is voidable and not void. It is voidable at the instance of the minor and not at the instance of other parties. It is voidable against the parties that are major but not against a minor. If the minor avoids the said agreement it would be set aside. But in no case can the infirmity in the agreement be used by other parties for the purpose of avoiding it in their own interest. Non-observance of the condition laid down by Rule 1 does not make the agreement or decree void for it does not effect the jurisdiction of the court at all. But in no case can the infirmity in the agreement be used by other parties for the purpose of avoiding it in their own interest. Non-observance of the condition laid down by Rule 1 does not make the agreement or decree void for it does not effect the jurisdiction of the court at all. The non-observance of the said condition makes agreement or decree only voidable at the instance of the minor and not void against him. 17. The court of appeal below came to the conclusion that such a compromise decree which was arrived at without complying with the provisions of Order 32, Rule 7 of the Code could be avoided by the minor only by a separate proceeding. The court of appeal below further took a wrong view of law in stating that the appeal was filed only by the father of the minor defendants and as the appeal was not filed by the minors, it indicated that the minors were not challenging the decree as unlawful. 18. On both these scores, the court of appeal below took absolutely erroneous view of law. As already stated above it was voidable at the instance of the minor and he could avoid the decree in a regular suit. But the question arises could the minor not file an application in the present suit itself and avoid the decree? And if the minor did file an application in the present suit itself, was it not incumbent upon the courts below to deal with the minors application on its own merit? I have already stated above that the minors did file an application on 1-6-67. Such an application was very much before the trial court and it was wholly a wrong view of law taken by the trial court that the minors remedy to avoid such a compromise decree was only by way of regular suit and the minors could not file an application in the suit itself. It is well settled that under such a situation the minor either can file a regular suit to avoid such a decree or can even file an application by way of review application in the suit itself. And such an application was maintainable in the eye of law. When the trial court said that the application filed by the minors was not entertainable it took an erroneous view of law. 19. And such an application was maintainable in the eye of law. When the trial court said that the application filed by the minors was not entertainable it took an erroneous view of law. 19. The lower appellate court, unfortunately, took the same view and having taken the same view it erroneously held that the minor could avoid such a decree only by a separate proceeding. Having taken such an erroneous view of law the court of appeal below did not go into the question of merit on the minors objection petition. I hold that minor defendants could avoid such a compromise decree by filing an application in the suit itself. 20. The other view taken by the lower appellate court, that as the major defendants had only preferred the appeal it indicated that the minors had not challenged the decree as unlawful, was also wholly erroneous in law. It is true that against the judgment and decree of the trial court only the major defendants had preferred the appeal; nonetheless, the minor defendants were very much before the court as some of the respondents (to be more specifically respondents Nos. 14 to 16). It seems, the court of appeal below was oblivious of the provisions as contained in Order 41, Rule 4 of the Code. Under this Rule it was within the competence of the appellate court to reverse or very the decree in favour of all the plaintiffs or defendants, as the case may be. Even though the minors defendants were the respondents, it could look into the matter whether such a compromise decree could be avoided by the minors or not. 21. This, I hold that the court of appeal below, on both the scores, took an erroneous view of law and in that view of the matter I hold that the judgment of the lower appellate court is not in accordance with law. 22. It is made clear that the court of appeal below will not be influenced by any of the observations made hereinbefore and will come to its own independent finding in accordance with law. It goes without saying that the court will also deal with the objection of the minor defendants. 23. In the result, this appeal is allowed. 22. It is made clear that the court of appeal below will not be influenced by any of the observations made hereinbefore and will come to its own independent finding in accordance with law. It goes without saying that the court will also deal with the objection of the minor defendants. 23. In the result, this appeal is allowed. The judgment and decree of the court of appeal below are set aside and the matter is sent back to the court of appeal below to decide the matter afresh, after hearing the parties on the materials already on the record and in accordance with law. 24. However, in the circumstances of the case, there will be no order as to costs.