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2015 DIGILAW 1154 (GAU)

Lalita Barman v. Reena Barman

2015-09-08

INDIRA SHAH

body2015
JUDGMENT : Indira Shah, J. 1. Heard Mr. A. Mabque, learned counsel for the petitioner and Mr. M.U. Mahmud, learned counsel appearing on behalf of the respondent No. 1. The petitioner as plaintiff filed the title suit bearing T.S. No. 30 of 2005 for declaration, partition and injunction in the Court of Civil Judge, Bongaigaon, against the respondents as defendants. The respondents as defendants No. 1, 2 and 3 contested the suit on her own behalf and on behalf of defendant Nos. 2 & 3 by filing written Statement. The suit was decreed on compromise entered into between the plaintiff and defendant No. 1 on 15.06.2007. 2. Thereafter, the defendant No. 1 filed an application under Section 151 of the Code of Civil Procedure for setting aside the compromise decree stating that in the compromise decree, there was no reference to the insurance policy of the deceased and also the motor accident claims case filed to claim compensation for accidental death of Late Subhash Ch. Barman, husband of defendant No. 1 and father of her minors children. 3. The respondents, herein, filed their objection stating that the petition under Section 151of the Code of Civil Procedure is not maintainable on the ground that the compromise was entered between the parties after prolonged amicable discussions in presence of both the parties and their advocates. The defendant No. 1 represented her minor sons and it has been passed as per compromise entered into between the parties. It was also averred in the objection petition filed on behalf of the respondents, herein, that the respondent/plaintiff surrendered her share of benefit of Life Insurance Policy standing in the name of her deceased son in favour of the defendants including her minor sons. The plaintiff, herein, only wanted 1/4th shares of amount of compensation likely to be awarded in connection with the motor accident claims pending in the Motor Accident Claims Tribunal at Bongaigaon. 4. The learned Civil Judge, Bangaigaon, held that although in the compromise petition, the defendant No. 1, on the verification, has averred that she signed the verification on behalf of herself as well as on behalf defendant Nos. 2 and 3, her minor sons, but she did not state that she properly represented the defendant Nos. 2 & 3 as their natural guardian. 2 and 3, her minor sons, but she did not state that she properly represented the defendant Nos. 2 & 3 as their natural guardian. The defendant No. 1 failed to obtain leave of the court in compliance with the Order XXXII Rule7 of the Code of Civil Procedure and thereby set aside the decree passed on compromised and restored the suit to file for proceeding. 5. It is submitted by the learned counsel for the petitioner that the suit was filed by the plaintiff against the defendants stating that defendant No. 1 is the natural guardian of defendant Nos. 2 & 3, the learned trial Court allowed the defendant No. 1 to represent her minor children as their mother and natural guardian all along during pendency of the suit. The requirement of Order XXXII Rule 7 of the Code of Civil Procedure is that compromise by guardian without leave of the court, will entitle a minor to avoid the agreement or the decree and as such, agreement or decree will be voidable at the instance of minor and not void against them. There was nothing to conclude that the agreement entered into between the parties' amounts to fraud or concealment of material facts. The dispute regarding the benefits due in respect of Life Insurance Policy and Motor Accident Claims were not the subject matter of the pending suit. 6. Moreover, when the decree was passed, the learned trial Court cannot entertain a petition filed under Section 151 of the Code of Civil Procedure since appeal lies against a decree as per Section 96 of the Code of Civil Procedure. Sub-rule (2) of Rule 1A to Order XLIII says that in an appeal against a decree passed in a suit after recording compromise or refusing to record a compromise, it shall be open to the appellant to contest the decree on the ground that the compromise should, or should not, have been recorded. Thus, an appeal lies against the compromised decree as well as an application under Section 151 of the Code of Civil Procedure can be entertained only when the Code of Civil Procedure is silent regarding a procedural aspect. 7. Here the learned trial Court committed the error in entertaining the application under Section 151 of the Code of Civil Procedure when the remedy was an appeal against the decree. 7. Here the learned trial Court committed the error in entertaining the application under Section 151 of the Code of Civil Procedure when the remedy was an appeal against the decree. That apart, the defendant No. 1 was allowed to contest the suit representing her minor children as natural guardian and the compromise was entered into between the plaintiff and defendant No. 1 where defendant No. 1 singed the verification representing the minor defendant Nos. 2 & 3. 8. Order XXXII Rule 7 says that without leave of the Court, the guardian of the minor cannot enter into any agreement or compromise on behalf of a minor with reference to the suit. In this case, both the parties filed their application praying for, passing of a compromise decree in the suit and it was allowed by the learned trial Court whereupon compromise decree was passed. 9. There is nothing in the terms and conditions of the compromise decree to show that the compromise was against the interest of the minors or to their prejudice. Moreover, when the court has no locus standi after passing of the decree to set aside the decree passed under Section 151 of the Code of Civil Procedure, the Order dated 17-05-2008 passed by the learned trial Court in Misc. (J) Case No. 22 of 2007 is liable to be set aside and quashed. Accordingly, it is set aside and quashed. The revision petition stands allowed and disposed of in terms of above. Return the LCR, if any, to the learned court below along with the copy of the judgment and order.