A decree-holder's clerk purchased property sold in execution. The minor debtor's guardian withdrew the application to set aside the sale by compromise without court leave. The minor, now adult, sued to set aside that withdrawal. The court rejected the minority challenge.
The appeal filed by the appellant is dismissed with costs of the contesting respondents.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
2 s.o.R.
'(
SUPREME COURT REPORTS
DOKKU lJHUSHAYYA
v.
KATRAGADDA RAMAKRISHNAYYA
(A. K. SARKAR, K. SUBBA RAO and J. R. MUDBOLKAR, JJ,)
.·~
Oiml Procedure-Decree against minor-ErcecutW.. and sale-ApPlication for setting aside sale-Oompromise by guardian-L·eave of Oourt not obtained-Whether binding· on minor-Oode of OitJil Procedure, 1908 (Act V of 1908), s. U, 0. 82, r. 7.
One B obtained a decree for money 11gainst the appel· !ant and bis father. The appellant was a minor and was represented by his maternal grandfather as his guardian. In e:Xecution certain properties were sold and the appellant filed an application for setting aside the sale through his guardian. The guardian entered into a compromise with the decree hold· er and the auction purchaser under which the application was withdrawn. Subsequently the sale was confirmed. Afte.i at· taining majority the appellant filed a suit for setting aside the order for withdrawal of the application for setting aside the sale and for a rehearing of that application on the ground that the guardian had not obtained the leave of the court as requir· ed by 0.32, r. 7 Code of Civil Procedure before entering into the compromise.
Held, (per Suhba Rao and Mudholkar, JJ., Sarkar,J. contra)· the 0.32, r. 7 was not applicable to the withdrawal of the application for setting aside the sale and the order for withdrawal of that application was binding on the appellant. Order 32, r. 7 is applicable only to "an agreement or compro• misc with reference to the suit", and there · are the following limitations to its applicability: (i) it is applicable only· where the rights put in issue in the suit are involved and not to· mere procedural steps; {ii) it is applicable ouly during the pcndency of the suit which mcludes execution proceedings; and (HI) th~ agreement or compromise must be with a party to the suit. Though the application for setting aside the sale was an ap,o plication in execution of the decree, the agreement or compro., misc entered into by the guardian with the auction purchaser to withdraw the application did not affect the rights and liabi· lities declared by the decree and therefore leave of the court under 0.32, r.7, was not necessary. Section Ul of the Code
.·
500 SUPREME COURT REPOR'8 (1963)
lllf•
lllf• could not be utilised to make 0.32, r.7 applicable to the agree-.u .. JllusMi,,. ment in question ass. 141 was applicable to original proceed.. ings and not to proceedings in execution
..
Kalr•g•ido Roi..t,;,,Ar.oyJ• Virupakshappa v. Shidappa and Baaappa. (1901) I.L.R. 26 Born. II 0, Arunachellam Chettg v. Ramanadhan C Mlty, (1906) I. L.R. 29 Mad. 309 MutlwlaJ:/cammal v. Narar>pa Rwdier, (1933) l.L.R. 56 Mad. 430, Jitendra Nath Roy v. Samartndra Nath Mitter (1943) L.R. 70 I.A. 68, Katn•11i Y•.U:atal:rishnayya v. Garapati China KanaJ:agya, l.L.R. (1938) Mad. 819 and Thalcur Praaad v. Sheikh Fa/cir Ullah, (1894) L.R. 22 I.A. 44, referred to.
Per Sarkar,J.-The leave of the <.ourt under 0.32, r. 7 was ncc•'ssary before the guardian could enter into the agreement or compromise to withdraw the application for setting aside the sal<. There wa• no j'1sti6cation for limiting the operation of the rule in iu application to execution proceedings only to compromises which directly all'ected the rights and liabilities under the de-:rcc; it was applicable to all compromises which brought a proceeding to an end thereby affecting the rights and liabilities of the minor. The compromise in the present case was not merely concerned with the conduct of proceedings but it seriously affected the liability of the appellant under the decree.
Virupakshappa v. Shidappa, (1901)1.L.R. 26 Bom. 109, Rhodu v. Swithenbank, (1889) L. R. 22 Q. B. O. 577, Gurmallappa v. Mallllppa, (1920) I.L.R. 44 Bom. 574 and Katn•11i Vtnlcalalcriahna111J" v. Ganapati China Kana/cayya, (1938) I.L.R. Mad. 819, refrrrcd to.
•
CIVIL APPELLATE JurusDICTION: Civil Appeal 483 of 1957. Appeal from the judgment and decree dated November 25, 1949, of the Madras High Court in Appeal No. 66 of 1946.
A. V. Vi$wanatha Saatri and T.V.R. Tatachari for the appellabt.
Bhimsllfl,/lkarama and B K.B. Naidu, for ree· pondents Nos. l and 2.
T. Sat,yarwra11a11, for respondents Noe. 7 and 8. 1962. April 27. Sarkar, J., delivered a eepa· rate Judgment. The Judgmfint of 8ubba Rao and Mudholkar, JJ., was de-livered by Subha Rao, J.
2 s.c.R. SUPREME OOURT REPORTS
501
S.t.BK•R, J.-In 1929, one Bapiah filed a suit against the appellant, then a minor, his father a.nd another person on a promissory note executed by the two last mentioned persons, The appellant was represented in that suit by his maternal grandfather a.s his guardian ad litem. A decree was passed. in that suit. The decreeholder put the decree in execution and obtained an ordt>r for the sale of certain properties in which the appellant was. interested. The properties were sold in due course in favour, it is said, of a clerk of the decreeholder. Thereafter, the appellant's guardian ad litem made an application under 0. 21 r. 90 of the Code of Civil Procedure for setting aside the sale. Later, how~ver, the guardian ad litem came to a settlement with the decreeholder and the auction purchaser that the guardian ad litem would give up the contention regarding the invalidity of the sale &nd withdraw the petition to set it aaide and also giYe up poSBession of the properties sold to the auctioq purchaser and decreeholder and the auction purchaser in their turn would give up their claim for costs of the. petition. In pursuance of this agreement the petition was withdrawn and dilllllissed by order made on August 12, 1932.
IHI
••kku Bhruhqv• y, Katragsdia Rti"1akri1h11a}ya Sarko1 J.
After attaining majority, the appellant filed a suit in 1944 to set aside the order of August 12, 1932, and for a re-hearing of the petition which was dilllllissed by the order of that date. It is from thia suit that the present appeal arises. The suit we.a decreed by the trial Court but on. appeal the decision of the trial Court was reversed by the High Court at Madras and the suit was ordered to be dismissed. There is no dispute that the suit was competent and within time.
The only question in this appeal is whether the order of August 12, 1932 is voidaple under 0. 32 r. 7·of the Code of Civil Procedure, 11:108, at the illltanoe of the appellant. That rule forbids tae
502 SUPREME OOURT REPOR TS[l963)
190
D,Uu Bhosha,T.IO •• 1'otragadio Hamd,i11'n41.70
Satkor J.
guardian for the suit to "enter into any agreement or compromise on behalf of a. minor with reference to the suit" without the leave of the court and provides that the any such &greement or compromise entered into without the leave of the court aha.II be voidable against all parties other than minor.
Order 32, r. 7 of the present Code corresponds to s. 462 of the Code of 1882. It has been settled sinoe the Code of 1882 was in foroe that the provi· sion under the consideration applies to prooeedings in execution though it only mentions agreement or compromise with reference to the suit. As long ago as 1901, Jenkins C.J. said in Virupakahappa v. Shidappa, (') "I will first deal with the question whether section 462 applies to a compromise of execution proceedings. On the words of the section I think it does; a.pplica.tions in execution a.re proceedings in the suit, so that a compromise of such a proceeding would be a. compromise with reference to ·the suit. This view has been followed ever sinoe.
The High Court took the view that a compromise of a.n execution proceeding would be within O. 32, r. 7 only when it a.Jfected directly the rights and liabilities created by the decree. It observed that the compromise in the present case was not. affected by the rule 11.8 it concerned only the rights and liabilities under the auction sale and not those arising under the decroe.
I a.m unable to agree with this view. The High Court rested itself on the fa.ct that all the reported decieioDB dealt with oases in which the agreements ha.d directly affected the rights and lir,. bilitiee under the decree. Thie does not to my mind furnish sufficient justification for the High Court's view. No decision has been bronght to our notice in which it ha.a been held that O. 32, r. 7 does not apply to a. compromise of execution proceedings (I) (1901) I.R.L. 26 Dom. 109, llf.
S.O.R. SUPREME OOURT REPORTS 503
which does not directly affect the rights and liabilities created by the decree~ It does not seem to me that on principle the High Court's view can be justified.
It is true that O. 32, r. 7 does not apply to all agreements. In Bhodes v. Swithenbank (1 ) it was obilerved, "This is an action by an infant by means of her next friend, who undoubtedly has the conduct of the action in his hands. If, however, the next friend does anything in the action beyond the mere conduct of it, whatever· is so done must be for the benefit of the infant, and if, in the opinion of the Court it is not so, the infant is not bound". It may therefore be said that an agreement concerning the conduct of the proceeding does not ·require the sanction of the Court.
JIU
Dokku Bh11JA•y1• y, Katr~g,i4• R411m11iri1/tn8yyQ
Sarka,. J.
Beyond this, I find no justification for limiting the operation of the rule. I observe that Jenkins C.J. in what I have earlier read from his judgment, said that the rule "applies to a compromise of execution prooeedings". Therefore, it seems to me that according to the learned Chief Justice it applies to all compromises of execution proceedings, excepting, of course, compromises concerning the conduct cif them, and this whether the compromise directly affects the rights or liabilities under the decree or not. I think the principle of the rule Will! correctly stated by Heaton J. when dealing with s. 462 of the Code of 1882 he observed in Gurmallapa · v. MalT,appa ('),"That section, l: think, necessarily implies that during the continuance of proceedings · in Court, the dispute between the minor and another party which the Court had to decide could not be compromised except by the guardian ad litem of the minor, and by him only with the leave of the Court." :i;. think that any compromise of a proceeding . ,'hleh concerns the dispute involved in it II) (1889) LR. 22. Q.B.D. S77, S78. \2) ~1920) LL.It. 1l4 llanl-57f, '11i
604 SUPREME OOURT REPORTS [1963]
lHll ~ .,,.,, . ..,,..,,,. v • . /r.UJfll/U 11-.krUAoo»"
Sarita J,
would require the sanction of the Court. I should alao point out that sub-r. (5) of r. 3 of 0. 32 pro· Yides that a person appointed guardian for the suit for a minor shall unless his appointment is terminated, continue as such throughout all the proceedings arising out of the suit including the proceedings in execution of a decree.
The object behind O. 32 seems to me to be that when an infant is involved in a legal proceeding, he should have a guardian a.esigued to him and that guardian should be under the control of the Court before which the proceeding is.pending so as not to be able t-0 affect the rightB and lia.bilities of the infant, the subject matter of the proceeding, by a eompromise which the Court has not approved as Gne for the benefit of the infant. If this is the prineiple, as I think it is, there would be no juetification for limiting the operation of the rule in itB application to execution proceedings, only t-0 compromises which directly affect the rights and liabilities under the decree, The rule, in my view, would apply, among otheni, to compromises which bring a proceeding to an end a.nd there by affect the rightB or liabilities of the infant involved in it. I think this view receives support frGm the observations ofVaradacharia.r J. in Katneni Venlcatakri· /J1mayya v. Ganapati China Kanakayya(') that, "Rule 7 deals with the conaluct of a 'next friend' as such who, as pointed out in Bhodes v. Swithenbank(') is an officer of the Court to conduct the suit; and the principle underlying are 7 is that whenever he proposes to do anything beyond the normal conduct of the suit, he has to obtain the leave of the Court to do so." Quite obviously the word "suit" in this observation would include a proceeding in execution.
.,.
'
•
It is of some interest to point out that the learned Judges of the High Court were careful to (I) (1938) I.LR. M&d. 819, 828. (ll (1889) LR. 22 Q.B.D. 577, 5111,
2 S.O.R .. SUPREME COURT REPORTS 505
use the word "directly"; they said the agreement or compromise in the present case did "not directly deal with or regulate the extent and nature of the rights and liabilities under the decree, which otand intact and unaffected as before." This seems to me to indicate that the learned Judges were cons· cious that the compromise in this case affected the rights and liabilities of the appellant under the decree at least indirectly. It seems to me that if the rule prohibits an agreement which directly a.f- f ects the rights and liabilities of an infant under a decree, there would be no reason to think that it would not similarly prohibit an agreement deliberately ma.de to affect the same rights and liabilities indirectly. The agreement challenged in this case, is, as I shall endeavour to show, of this kind.
195Z
Dokka Bl.usM~J• v. Ketr.,.ida lt•md:rl.rhu,Ja
Sarkar J.
Turning now to the facts of this case I think the proceeding in which the compromise was arrived at was in the course of execution of the decree. It was a proceeding to challenge the validity of an execution sale. It was therefore a proceeding, a compromise in reference to which would be goTerned by 0. 32, r. 7 under the rule laid down in Virupakshappa's CMe(l).
It also seems to me clear that the comproinise was not concerning the conduct of the proceeding. It brought the proceeding to an end and its result was that the appellant's right to question the validity of the sale was lost. He because bound by the sale, good or bad. His liability under the decree was reduced only by the amount of the proceeds of the sale, however inadequate a price might have been fetched in it. It may be that if the proceed· ing to set aside the sale had been continued and not abandoned, the sale might have been set aside and a fresh sale, if one took place, might have fetched a larger price and thereby diminished the liability (I) (11111) LL.R. 26 Bom. IOll. lit.
(
506 SUPREME OOURT REPORTS [1963]
196f under the decree to a greater 'extent. Suoh a compromise cannot be said to be one relating to the Doih •hwA•.·y• Y. conduct of the proceeding. It seems t., me A.lso to be
K•Mja/"4 one affecting seriously the liability of the appellant R~• under th~ decree since it deprived him of his right to have that liability reduced by a larger amount by a sale properly held. It is a oompromiee which from all points of view, should have boon made with the sanction of the Court.
Before concluding I think it right to say that the decreeholder and auction purch11.ser can derive no aPsistance from .fitendra Nutli Rao v. Samarantlra Nath Jfitter(I), In that oase the .Judicial Committee held that the agreement contemplated by 0. 32, r. 7 is one which is made with a party to the suit or proceeding. Here the agreement was in the execution proceeding and it was ma.de with the decreeholder and the auction purchaser both of whom were parties to it, tho former having been a party to the suit itself out of which the execution proceeding arose.
..
I think this appeal should be allowed.
Subba Raa J.
SUBllA RAO, J.-This appmil raises the question of the construction of the provisions of Order XXXII, r. 7 of the Code of Civil Procedure.
Bhush~yya, the appellant, and respondents 7 and 8 herein are the sons of one Dokka Adeyya (since died). On the basis of a 1>ro 'Dissory note executed by Dokku Adeyya and respondent 5 in favour of one Bapayya, the latter filed C.S. No. 88' of 1929 in the Court of the Subordinate Judge, Bapatla, and obtained a decree thr.rein. In that euit, tho appellant, who was then a minur, was a defendent and Wall represented by his maternal grandfather as hie guardian. In execution of the said decree, properties of Do kku Adeyya we1e brought. (I) (IKS) L.R. 70 I.A. 68.
•
2 S.C.R. SUPREME COURT REPORTS. 507
to sale and were purchased by the decree-holder's clerk; Bapiraju, subject to the mortgage in favour of the decree-holder. Before the sale was confirmed, on March.29, 1932, the appellant, represented by hi9 maternal grandfather, filed E.A. No. 136 of 1932 to set aside the sale under Order XXI, r. 90 of the Code of Civil Procedure .. The said petition was posted for inquiry to August 12, 1932. On that day, a memorandum was filed in the court by the guardian of the appellant to the effect that the matter was agjusted and that the petition should be dismissed as having been withdrawn. No sanction of the court was obtained by the guardian for withdrawing the petition. On the said day, the court passed an order dismissing the application. SubsequJntly, the sale was confirmed. On October 9, 1944, the appellant, who had then attained majority, filed a suit, 0.8. No. 80of1944, on the file of the Subordinate Judge, Tenali, for setting aside the order dated August 12, 1932 and to try the application for setting aside the sale on market. It was, inter alia pleaded that the said order was void in as much as the guardian of the appellant with· drew the application without the sanction of the court as he should do under Order XXXII, r. 7 of the Code of Civil Procedure, hereinafter referred to as the Code. The contesting defendants, some of them being the subsequent alienoes, filed writtenstatements seeking to sustain the validity of the said order. For the purpose of this appeal we need not notice any other point. The learned Subordinate Judge held that the withdrawal of the Sa.id petition and thtJ consequent dismissal thereof was void, as the guardian did not obtain the sanction of the Court under Order XXXII, r. 7 of the Code. On appeal, the High Cturt came to the conclusion that Order XXXII, r. 7 of the Code had not relevance to an application for setting aside the aale in the ciroomat61lces of t1ie case,· - the a
1962 Do I ku BAuslKly:µi v. I Kstragtdda' Rama.b-ishnay)a
Subba Rao J.
508 SUPREME OOURT REPORTS [1963]
1962 The only question that arises in this appeal is DoAh BAusAa.uo whether the withdrawal of the said }M'tition by Kalr.ga4da •• the guardian was in contravention of Order XXXll,
RamoAri,hnaJJa r. 7 of the Code. Before construing the provisions SuNHBooJ. of the said Order, it would ba convenient to notice what exactly were the terms of the agreement. The High Court in its judgment summarised the factual position on that date thus:
•'The agreement is that the guardian·a<llitem should give up the contentions regarding the invalidity of the auction sale and should withdraw the petition to set aside the sale and also deliver up poBSeBBion of the propertie-s puro~sed, to the auction-purchaser and that the decroe-holdor and auction-purchaser should give up their claim for costs of the said petition. It was in pursuance of this agreement that the petition was withdrawn and dismiBSed (no costs being given)".
This is the correct petition, and we need not elaborate furthtJr on it. Order XXXII, r. 7, clauses (I) and (2) read aa follow:
Clause (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.
Clause (2). "Any such agreement or com· promise ent.ired into without the leave of the Court so recorded shall be voidable against all parties other than the minor."
In Madras, there is also another elaust>, viz., d. (I-A) introduced by an amendment made in l!llO and it reads:
"Where an application is made to tbl'! Court for leave to enter into an agreement or
2 S.C,R. SUPREME OOURT REPORTS 509
compromise or for withdrawal of a suit in pursuance of a compromise or for taking any other action on behalf of a minor or other person under disability and such minor or other person under disability is represented by counsel o~eader, tho counsel or pleader shall file in Court with the application a certificate to the effect that the agreement or compromise or action proposed is in his opinion for the benefit of the minor or other person under disability. A decree of other for the compromise of a suit, appeal or matter to which a minor or other person under disability is a party shall recite the sanction of the Court thereto and shall set out the terms of the compromise as in Form No. 24 in Appendix: D to this schedule."
1962
Do/;ku Blnu~ay,. v. Jfr,lratodda. RamakrialmaJJO
Subba Rao .I.
Under this Order, no guardian shall enter into an agreement or compromise on beha If of a minor with reference to a suit in which he acts as next friend or guardian. The short question is, what is the meaning to be given to the words "an agreement or compromise with reference to the suit" ? Mr. Viswanath Sastri, learned counsel for the appellant, raised two contentions, namely : (1) That the ex:ecu ti on proceedings are proceedings with reference to the suit and therefore any compromise or agreement 11ntered into or effected by a guardian of a minor in execution proceedings affecting his rights procedural or substantive, whether in issue in the suit or declared by the decree or not would require the sanction of the court and an agreement entered into without that sanction would be void. (2) An application to set aside a sale is a proceeding within the meaning of s. 141 of the Code, and, therefore, 0. XXXII, r. 7, as far as it can be made applicable, would apply to such proceeding; as the compromise was entered into by the guardian in such a proceeding without the leave of the Court, the aaid CQm•
I
510 SUPREME OOURT REPORTS [1963)
promise a.a well ae the order made pursuant thereto was void.
Dokku Bh'41h.1.10 v. Kotra1<Jdda R<Ju.ahisltnrv.Ja Subba Rao J,
On the other hand, Mr. Bhimasa.nkaram, learned counsel for the respondents, while supporting the teat laid down by the High Court, namely, that an agreement to fall withiI1 the mischief of the said 01der shall be such as deals directly with the rights and liabilities involved in the suit or defined by the decree, attempted to abridge the scope of the test further by trying to make a distinction between an agreement relating to rights conferred by the decreo and th~t only relating to liabilities imposed thereunder.
Order :X:XXII, r. 7, iM one of the provisions deBigned to aafegu&rd the interests of a minor during the pendency of a suit against hostile, negliitent or collusive acts of a guardian. rhe scope of the provisions is implicit in the phraseology uaod therein. The crucial words are "any agreement or compromise ... with reference to the suit". The words "with refer<>nce", if taken out of tho context, are of the widest import. They may take in every procedural step in thti condunt of a suit, buch as adjournment, admission of documents, interlocutoriea; inspoction etc., and obviously it could not have been' the intention of the Legislature that agreements in respect of such procedural steps should conform to the requirements of the rule. If that be not so, the rule instead of protecting the interests of a. minor would easily become a major obstacle in disposing of suits in which a minor is ranged as party on one side or the other. So consistent with the purpose of the rule the words "with reference to the suit" must be limited to the rights put in issue in the suit.
•
The next limitation is that the protection is only during the pende11oy of the 1uit. When don • euit come to N e11d f lt iiaa been held Uiat for "1o
·• ·-
2 $.C.R. SUPREME COURT REPORTS 511
,.
purpose of the said rule an execution proceeding is a continuation of a suit: see Virupakshappa v. Shidappa and Basappa('), Arnnachellam Ghetty v. Rarrumadhan Ghetty('), and Muthalakkamrnal Ghetty v. Narappa Reddiar('). If it was a continuation, the rule would also apply to an agreement or compromise with reference to the said execution proceeding. But, just like in the case of a suit, in the case of execu· tion proceedings also, the agreement or compromise shall be one affecting rights or liabilities ascertain· ed or declared by the decree put in execution. As in the case of a suit, so also in the case of an execution of a decree, mere procedural steps not affecting the rights or liabilities so declared are not governed by the provision. The guardian may agree to an adjournment of a sale, to a waiver of a fresh proclamation, to a reduction of upset price etc. It could not haTe been the intention of the Legislature that every time such a step is taken, the procedure la.id down in Order XXXIII, r. 7, of the Code should be complied with.
1902
Dokku JhwllaJJ• v. K alrspdda RamMrls6""yJa
Sub•i ·Rao J,
The next limitation is that the agreement or compromise shall be entered into with a party to a suit or his legal representative. The rule does not provide for dealings of a guardian with persons not parties to a suit. The question directly a.rose in a case which went up to the Privy Connail, viz., in Jitendra Nath Roy v. Samarandra Nath Mitter('). There, a decree obtained in favour of a minor, represented by his guardian, was assigned by the guardian for consideration to another without ob· tained the leave of the court. Advertising to the question of validity of such an assignment, Lord Atkin observed :
"They (the Judges of the High Court) took the view that in the rule in the phrase "agreement or compromise ... with reference ll) (1901) 1.L.R. 26 Bom. llO. (2J (1906) I.L.R. 29 Mad. 309, (3) (1933) I.L.R, 56 Mad. 430. (4) (11143) J..R, 70 I.A. 68. 72,
l J
512 SUPRBillE COlJ.R'f .REPOR'l'S (1963]
1"~1 . to . the suit" the words mean agreement with . Dollu BhiuhaJY• .. a of party a decree· to the to someone suit and do then not unconnected with cover a transfer Katragadda
Ramakrishnay}O the suit, even assuming that such transfer. :'.:fc could properly be described as an agreement. .• Subi<> Rao J, They expressed their agreement on this point. · with a decision of the Full Bench of the Madi:as . High Court in· Katneni Venkatakrishnayya · Garapati China Kanakayya(I), which is precisely iri point, It appears to . their Lordships • that· it cannot have been intended to require ·
! the leave of the court to an agreement, for I j example, made with a non-party to finance a suit, whether with a. stipulation to receive part of the proceeds or not. The conjunction of the word ''agreement" with the word "compromise" ·appears to . indicate. the kind .of agreement intended."
• ..:
-i_ '\
We agree with·. these observations. The re:mlt is '\ that Ord.er XXXII, r .. 7, ·of the Code will apply to _ ~:1 only to an agreement. or compromise entered. into:· by a guardian of a party to the suit, who is a minor/ with another party thereof during the pendency of"'·· ... · '!. · ·· ' the suit and the execution proceedings. '
The next question is whether ·the- application for setting aside a sale ia a proceeding in execution of a decree. Order XXI · pf the Code prescribes, among others, the different modes of execution, one · of them being execution against the property of a judgment-debtor. The Order also prescribes a procedure for sale of the said property and for sett· ing aside a sale obtained by fraud or material irregularity. Under Order XXI, r •. 92,- where no application is made under r. 89, r. 90, or r. 91 to set aside a sale or where the application is made and· disallowed, the Court shall make an order confirming the sale, and thereupon the sale shall become abso- ·
. (I} l.L.R. 1938 Mad. 81~.
•1!9°- l
2 S.C.R . SUPREME COURT REPORTS
•
\
lute; under sub-r. (3) of r. 92 of the said Order, "No suit to set aside an order made under this rule shall be brought by any person against whom such order made." It is, therefore, clear that Order XXI provides a self-contaiued machinery for executing a decree and for deciding disputes that may arise in connection with the execution. The execution is not closed till the decree is discharged or barred by limitation. In this view, we must hold that an application filed by a judgment-debtor to set aside a sale is an application in execution of a decree.
Even so, as we have already indicated, to attract Order XXXII, r. 7, of the Code t.he agreement or compromise entered into between the guardian and the auction-purchaser shall be an agreement or a compromise affecting the rights or , liabilities declared by the decree. Can it be said that in the present case the agreement affected any such right or liability ? The suit was on the basis of a promissory note executed by the father and the brother of the appellant. The appellant was also a party to the suit. The decree was for recovery of the amount covered by the promissory note with interest. It did not in any way affect the title of the appellant to the entire or to any part of the property of the family sold in execution of the decree. The appellant, by his guardian, filed an application to set aside the sale on the· ground of fraud and material irregularity in the conduct of the sale. 'fhe guardian agreed to withdraw the said application on certain conditions. The agreement also did not in any way affect the rights or liabilities declared under the decree. Notwithstanding the agreement, the decree was left intact. It is said that if the sale was set aside, the decree would have to be executed afresh, but as it was not &side on the basis of the said agreement, the sale prioo in disoharge of the decree; therefore, the argument proceeds, the agreement affected the discharge
196B
D1k~u BhtuhqyJa •• Ealrazadda Ram1kr1shnavyo
Su!Jk Rao J.
514 SUPREME COURT REPORTS [1963]
Doklru 8/Mlsliqyo • KatrGgutida Baw.nltruhr.5_7)"<l
Srtbbo Rao J,
of the decree. The father of appellant could have sold the family property out of court and could have out of the salo proceeds, discharged the decree. In that event it could not be said that the sale affected the rights or liabilities decree. If so, the sale of property through court cannot equally affect any euoh rights or liabilities declared by the decree. We, therefore, hold that the agreement or· compromise entered into by the guardian in respect of such a sale did not affect the rights ascertained and declared by the decree, and, therefore, the leave of court under Order XXXII, r. 7, of the Code was not necessary.
•·
Before laving this pa.rt of the case, we should make it clear that .it is not our intention to Jay down that under no circumstances &n agrement or compromise enterd into by a guardian to withdraw an application filed for setting aside a sale would be governed by Order XXXII, r. 7, of the Code. There may be arrangements or compromises in respect of such a petition wbercunder the right.a declared by decrees are affected. We also asumed for the purpose of this case that tho auctionpurchaser was a party to the suit, as there was some controversy on the question whether he was a benamidar for the decree-holder.
Lastly it was contendPd that by reason of s. 141 of the Code, the procedure provided undn Order xxxn, r. 7, should be extended to an agreement or a compromise entered into by a guardian in respect of an application to set aside a sale under Order XXI, r. 90, of tho Code. The argument is that an application under Order XXI, r. 90, is an independent proceeding, and 116 the agreement for withdrawing the said proceeding affect.a the right created by the ea.le, it falls within the meaning of the said rule. Section 141 of the Code reads :
"The procedure provided in this Code in regard to suite shall be followed, as far ae it
2 S.C.R . SUPREME COURT REPORTS 515
. can be made applicable, in all proceedings in any Court of civil jurisdiction. 'Ihe corresponding s. 646 of the Code of 1882 read as follows:
«The procedure herein prescribed shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction other than suits and appeals".
Doilru Bhwh9ya v. Katragatitla RtDnOkrishnoyya
Subbo R,o J,
There was a conflict on the question whether the said section applied to proceedings in execution. To steer clear of the conflict the following Explanation was added to the section by the Civil Procedure Code Amendment Act 6 of 1892 :
'
I
' ·--,
"Explanation:-This section does not apply to applications for the execution of decrees which are proceedings in suits": But the section was construed by the Privy Council even without the said of the Explanation in Thakur Prasad v. Sheikh FakirUllah ('), wherein it observed :
"It is not suggested that s. 373 of the Civil Procedure Oode (Order XXIII, r. 1 of the present Code) would of its own force apply to execution proceedings. The suggestion is that it is applied by force of s. 647 (s. 141 of the present Code). But the whole of Chapter XIX of the Code, consisting of 121 sections, is devoted to the procedure in executions, and it would be surprising if the framers of the Code had intended to apply another procedure,· mostly unsuitable, by saying in general terms that procedure for suits should be followed as far as applicable. Their Lordships think that the proceedings spoken of in a. 64 7 include original matters in the nature of suits such as (I) [1894] L.R. 22, J. A. 44, 49.
!
516 SUPREIE COUIT REPORTS (196SJ
lllU proceedings in probates, guardianshijlll, and so Dokk11 Bhushuy;1a v. forth, and do not include executions." Kal1aguJda Ra-.lril"""'-7• This view ha.s ever since been followed. We have already held that the application by the judgment- Biib&o Raa J. debtor to set a.side the sale is a proceeding in ex11cution and, therefore, s. 141 of the Code will not apply for two reasons, namely, (I) as execution proceedings were continuation of suit within the meaning of Order XXXI!, r. 7 of the Code, and as the Code provided specifically for suits, s. 141 could not be invoked; and ;2) as wo have held, an application by a judgment-debtor to set aside a sale is a proceeding in execution and therefore s ar, which applies only to original proceedings, does not apply to such procooding1.
In the result, the appeal fails and is dismiBB<ld with costR of the contesting respondent.
BY CoUR'r. In accordance with the opinion of the majority the appeal is dismiBBed with costs of the contesting respondents.
-,,.. .. -
3 issues framed by the court
Whether Order 32, Rule 7 of the Code of Civil Procedure applies to a guardian withdrawing a petition to set aside a sale in execution proceedings without leave of court.
Whether a compromise between a guardian and an auction purchaser affecting the validity of an execution sale requires court sanction under Order 32, Rule 7.
Whether Section 141 of the Code of Civil Procedure extends the procedural safeguards of Order 32, Rule 7 to applications filed under Order 21, Rule 90.
Colour shows how this judgement treated each authority
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3 provisions across 1 enactments
Dokku Bhushayya
Katragadda Ramakrishnayya
A. K. Sarkar
K. Subba Rao
J. R. Mudholkar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
