OM PAL Vs. KIRAT RAM

JUDGEMENT

(1.) RESPONDENT no. 1 brought a suit for specific performance of an agreement to sell certain immovable property. Applicant no. 3 besides applicant nos. 1 and 2 and respondents nos. 2 and 3 were defendants to the suit. Applicant nos. 1 and 2 and respondent nos. 2 and 3 are the sons of applicant no. 3. Applicant nos. 1 and 2 are minors. An application had been made for the plaintiff to appoint a guardian-ad-litem for applicant nos. 1 and 2. Notice was issued to the minors as well as to the proposed guardian, namely, their mother. The notice was served by the endorsement of refusal. On March 31, 1982, a compromise was entered into between the parties whereby it was stipulated that the sale was to be executed as per terms of the agreement of transfer. On the same date the court below made an order appointing applicant no. 3. as the guardian-ad-litem for applicant nos. 1 and 2. This was followed by leave granted to applicant no. 3 to enter into the compromise on behalf of the said minors. The compromise was recorded and a decree passed in terms thereof including against the minors. An objection was taken later for the applicant nos. 1 and 2 to avoid the compromise on ground that there had been no compliance duly made to the requirements under Order 32, Rule 7 of the Code of Civil Procedure. The objection was rejected by the court below on 24-11-1982 and aggrieved against the same the applicants have preferred this revision.

(2.) LEARNED counsel for the applicants contended that in making the impugned order dated March 31, 1982, the court below has not made compliance with the requirements under Rule 7 of Order 32, Civil Procedure Code. Rule 7 reads as under :-

(3.) THE question next arising is as to what is the effect of this provision not being complied with. In that connection reliance for the respondents is placed on sub-rule (2) which provides that such a compromise entered into without the leave of the Court duly granted shall be voidable at the instance of the minors. This was also the view taken by the Supreme Court in Bishundeo Narain v. Seogeni Rai (supra) and as well in Kaushalya Devi v. Baij Nath Sayal, AIR 1961 SC 790. THE compromise thus entered into does not result into an order which may be said to be a nullity ; it is not void but voidable at the instance of the minors. It is not open to the other parties, who are majors to the compromise, to seek to avoid it. Despite there being no proof of fraud or misrepresentation, the minors can seek to avoid the compromise where it is shown that there is no leave granted by the court in the manner and upon consideration of the factors relevant in this behalf. For the minors, as mentioned above, there was objection raised in this case to the effect that the compromise decree be set aside and treated as inoperative against them on the basis mentioned above. THErefore, in this proceeding it was open to the courts below to have set aside the compromise decree in so far as the minor applicants nos. 1 and 2 alone are concerned. On this account it may be made clear that the decree will not cease to be operative in so far as applicant no. 3 and respondent nos. 2 and 3 are concerned since they are majors and nothing has been said against the compromise entered into in so far as they are concerned.