PARKASH CHAND Vs. HARBANS SINGH

JUDGEMENT

(1.) This Execution Second Appeal has been referred by Harnam Singh, J. to a Division Bench because of an apparent conflict of authority on the point involved. It has arisen in the following circumstances. As long ago as 1934 Parkash Chand, then a minor suing through his father as his next friend, obtained a money decree for Rs. 1,575/- and costs jointly and severally against two judgment-debtors named Harbans Singh and Mal Singh. It seems that in March 1936 Parkash Chand's father who was still acting as his next friend in the execution proceedings entered into a sort of compromise with the two judgment-debtors, whereby he agreed to recover Rs. 930/- from each of them separately, and some instalments were fixed. In 1946 Parkash Chand, who had by that time become a major, took out execution proceedings against Harbans Singh judgment-debtor for the recovery of the amount of the decretal debt which still remained unpaid. Harbans Singh raised objections under Section 47, Civil P. C, pleading that under the terms of the corn-promise no further sum could be recovered from him, and in fact he claimed that he had already paid a larger sum than was due from him under the compromise and that he was entitled to the return of the amount he had paid in excess of the agreed sum. It was admitted that in fact altogether Rs. 1,185/- had been recovered from Harbans Singh in execution of the decree. The decree-holder pleaded that the compromise was not a valid one as the terms of Order XXXII (32), Rule 7, Civil P. C. had not been complied with and the necessary sanction of the Court for the compromise entered into on behalf of the minor had not been obtained. This contention was accepted by the executing Court which accordingly dismissed the objections of the judgment-debtors. In the judgment-debtor's appeal, however, the learned District Judge held that the compromise was binding on the minor and that he was not entitled to proceed any further against Harbans Singh, and the decree-holder has accordingly come to this Court in second appeal.

(2.) When the appeal came for hearing before Harnam Singh, J., he considered that the matter should be referred to a Division Bench because there was apparently a conflict between two decisions of the Lahore High Court and a Full Bench of the Madras High Court on the question whether Order XXXII (32), Rule 7 applied to execution proceedings. In 'Muthalak-kamal v. Narappa', 56 Mad 430, it has been definitely held by a Full Bench that Order XXXII (32), Rule 7, Civil P. C. applies to execution proceedings. The order is, however, a very brief one in which a number of cases are listed rather than discussed, but the decision is clear and definite. Moreover the same view has been expressed by other High Courts. In 'Lal Babu v. Rang Bahadur Singh', A I R (23) 1936 Pat 506. Rowland and Varma, JJ. held that the powers of a next friend acting for a minor in the course of a suit are not wider after the decree than before it and Order XXXII (32), Rule 7, or at any rate the principle embodied in it, is applicable to an agreement in execution proceedings. In Tulsiram Hoshiyarsingh v. Kevalram Sobha Ram', A I R (30) 1943 Nag 231, Digby, J., after reviewing the case law on the point held that Order XXXII (32), Rule 7 applies to execution proceedings, and therefore a compromise or adjustment of a decree to which a minor is a party requires the sanction of the Court, and in the same case it was held that when the mother of a minor acts as his guardian or next friend her powers are controlled by the provisions of Order XXXII (32), Rule 7, and therefore when she occupies the dual capacity of guardian and next friend of the minor she cannot rely on her position as guardian for power to compromise the suit without the leave of the Court. Although the circumstances in 'Kastori Singh v. Pati Ram', A I R (27) 1940 All 16, were somewhat different as the case related to an alleged compromise entered into by the next friend of a minor after the passing of the decree but before execution proceedings were started the views of Thom, C. J., with whom Ganga Nath, J. agreed are also relevant as set out in the following passage:

(3.) I agree.