DILRAJ YADAV Vs. IIIRD ADDITIONAL DISTRICT JUDGE AZAMGARH

JUDGEMENT

(1.) A suit for cancellation of compromise decree dated 29.9.1972 in Case No. 675/391 under Section 229B of the U. P. Zamindari Abolition and Land Reforms Act was filed by the plaintiff-respondent No. 3 in which issue No. 5 was framed with regard to the maintainability of the said suit. By the order dated 16.7.1962 the said issue was decided in favour of the plaintiff--defendant filed a Civil Revision No. 196 of 1982. By judgment and order dated 20.11.1982, the said revision was dismissed. It is against these orders the present writ petition was filed.

(2.) Order XXXII of the Code governs the procedure in suit in which minor is involved. A minor neither can sue nor can be sued without the next friend who is supposed to furnish security when so ordered by the Court and normally the Court appoints proper person as guardian of the minor. All these provisions have been engrafted to secure the interest of the minor. If such interests are not secured or in the event that the next friend of the guardian had interest adverse to that of the minor, in that event such decree is liable to be set aside. Rule 3A of Order XXXII provides in sub-rule (1) that even if the next friend or guardian has interest adverse to the minor the same would not be a ground for reversing the decree unless such an adverse interest of the next friend or guardian prejudices the interest of the minor. However, sub-rule (2) provides that nothing in this rule shall preclude minors from obtaining any relief available under any rule by reason of misconduct or gross negligence on the part of next friend of the suit resulting any prejudice to the interest of the minor.

(3.) In the present case, this Court is called upon to decide as to whether a suit by a minor to set aside decree through compromise under Order XXIII, Rule 3 of the Code could be maintainable. Inasmuch as Order XXIII, Rule 3A provides that "no suit shall lie to set aside the decree on the ground that compromise on which decree is based was not lawful."