Research › Browse › Judgment

Karnataka High Court · body

1998 DIGILAW 355 (KAR)

J. VIJAYALAKSHMI v. MASTER S. U. SACHIN

1998-06-26

ASHOK BHAN, S.R.VENKATESHA MURTHY

body1998
S. R. VENKATESHA MURTHY, J. ( 1 ) THIS is an application for permission to prosecute the appeal challenging the compromise decree in o. s. No. 121 of 1994 instituted by the first respondent herein challenging the alienation made by the father. ( 2 ) THE request for permission to prosecute the appeal is resisted by respondents 1 to 3. It is contended for the respondents that the applicant is a total stranger to the suit and is not even a proper party and has no interest in the subject-matter of the suit. It is also contended that equity between the parties to the suit has been worked out and found to be acceptable to the trial court and the decree has been passed in accordance with order 32, Rule 7 of the CPC. The applicant cannot seek leave to introduce a new dimension to the suit. ( 3 ) THE question as to whether a person who is not a party to the proceedings could be permitted to appeal against the decision came up for consideration in shivaraya v siddamma and another. His lordship Mr. Justice a. r. somanath iyer (as he then was) enunciated the position of law as follows:". . . . It is in my opinion, clear that leave to a person to appeal from a decree or order in a proceeding to which he was not a party should not be ordinarily granted unless he establishes that he has an interest which is affected by the order or decree from which he proposes to appeal. If he establishes that he has such interest, it seems to me that it is not necessary for him to further establish that if he does not institute an appeal with the leave of the appellate court, the consequence will be that the order or decree against which he proposes to appeal becomes conclusive without his being able to question such decree or order in other proceedings. in my opinion, the question as to whether leave should or should not be granted should depend upon the facts of each case and it is for the appellate court to decide whether the case before it is a fit one for the grant of such leave". ( 4 ) IN the instant case, admittedly, the petitioner is a neighbour who has evinced interest in purchasing the land in dispute. ( 4 ) IN the instant case, admittedly, the petitioner is a neighbour who has evinced interest in purchasing the land in dispute. At the first instance, this court did permit the petitioner to question the decree made by the trial court and allowed the applicant to make an offer, for consideration by the court, which was apparently higher than the figure that was settled between the parties. When the examination of the offer of the applicant came up for consideration before the trial court, the applicant-appellant herein failed to produce the requisite cash and the trial court rejected the offer made by the applicant and proceeded to accept the compromise entered into between the respondents herein. ( 5 ) THE applicant has again come up with this application for leave to appeal against the compromise decree recorded by the trial court. It is contended that the applicant had made a request to the court, for an extension of time to pay the amount, by reason of the applicant's banker's delay in providing the requisite funds, to enable deposit of the money offered. Admittedly, the petitioner is a neighbour whose only interest is to buy land in dispute between respondents 1 to 3 herein. applicant is neither a proper party nor a person who would be concluded by the decree or order without being able to question the same. ( 6 ) THE applicant has no right at all in respect of the property in question and her interest is only ostensibly the interest of the minor. order 32, Rule 7 of the CPC specifies the procedural safeguard in respect of compromise, where the party to the proceedings is a minor. No compromise in such a suit can be entered into without the leave of the court. The object of seeking leave of the court for entering into a compromise on behalf of the minor is to satisfy the court that the compromise is in the best interest of the minor. Counsel appearing for the minor is also obliged to certify that the compromise is in the interest of the minor. Only on the court being satisfied that the interest of the minor being adequately protected by the compromise, can the court accord its permission to enter into a compromise. Counsel appearing for the minor is also obliged to certify that the compromise is in the interest of the minor. Only on the court being satisfied that the interest of the minor being adequately protected by the compromise, can the court accord its permission to enter into a compromise. In the instant case, the compromise is found to be in the best interest of the minor and acceptable to the court. There is no reason why the same should not have resulted in a decree in accordance with law in favour of the plaintiff. The right to question the alienation was personal to the minor plaintiff and the applicant-appellant has no claim whatsoever over the subject of the suit. ( 7 ) THE applicant-appellant could not seek to buy the property under the guise of protection of the interest of the minor. If indeed such a procedure were to be allowed, under the guise of protecting the interest of a minor party, it would become an endless exercise converting the suit into an open auction of the property which is clearly beyond the scope of the suit. It is needless to state that the minor plaintiff if he so chooses, could still avail of the opportunity to challenge the decree rendered in the case, on his attaining majority. All this would be set at naught by allowing the applicant-appellant to challenge the decree. ( 8 ) EVEN otherwise, whatever offer the applicant-appellant made was not a substantially higher than what was agreed to between the parties and accepted in the trial court. The money that was deposited by the defendant in the suit in the year 1996 has yielded interest which has already been availed by the plaintiff for purpose of his education. In the circumstances, even on merits, the claim of the applicant-appellant does not, and cannot, persuade this court to grant leave to prosecute the appeal again. The application for permission to prosecute the appeal and the appended appeal stand rejected with costs. --- *** --- .