KARAM SINGH Vs. MOHINDER SINGH

JUDGEMENT

(1.) This is defendant's second appeal against whom the suit for declaration has been decreed by both the Courts below.

(2.) The facts giving rise to the appeal are that the plaintiff-respondent purchased the suit land which was the subject-matter of a suit for possession by pre-emption by Karam singh, defendant. The said suit was decreed with the direction that Karam Singh was called upon to deposit Rs. 12,210/- on or before July 20,1963 after deducting any amount already deposited by him as one fifth failing which the suit was to be treated as dismissed. Karam Singh, defendant, did not deposit the amount during the period fixed by the Court. However, a compromise was entered into on the basis of some adjustment stated to have taken place in execution whereby the plaintiffs were to be treated as mortgagees for Rs. 12,210/-. Originally, the mutation was rejected in the year 1970, but thereafter sanctioned on July 15, 1974. The said adjustment/compromise in execution proceedings as well as the order of the Assistant Collector, sanctioning the mutation were challenged by the plaintiff in the preset suit on the ground that the said compromise was not signed or thumb-marked by all the plaintiffs Major Karam Singh, defendant, was never appointed as an agent or a mukhtiar by plaintiffs Harnek Singh, Chet Singh, and Major Singh and that Major Singh, plaintiff, was minor at the time of the alleged compromise adjustment and that no permission of the Court was obtained as to whether the compromise was for the benefit of the minor. The suit was resisted by the defendant on the plea that the suit was barred under section 47 of the code of Civil Procedure (hereinafter called the Code), as well as by time. According to the defendant, the above said pre-emption decree was adjusted and acted upon. It was also submitted that Major Singh was minor at that time, but that was of no consequence. The trial Court found that since no permission of the Court was obtained for entering into the compromise on behalf of the minor and the same was not for the benefit of the minor as well, the compromise, if any, was not valid. It was also found that it was no adjustment in the eye of law rather it was a new contract between the parties and, therefore, the suit as such was maintainable. In view of this finding, the plaintiffs' suit was decreed. In appeal the learned District Judge affirmed the said findings of the trial Court and thus the decree passed in favour of the plaintiffs was maintained. according to the learned District Judge, it was not disputed that Major Singh plaintiff, was a minor then and no permission had been accorded by the executing court for a compromise. In the absence of the same, the compromise was positively illegal and voidable. It was also found that the creation of the mortgage was altogether a new contract and as such the suit lay to set aside the compromise and it could not be said that section 47 of the Code barred the same.

(3.) The learned counsel for the defendant-appellant submitted that the interest of the minor as well as of the other persons was the same, therefore, no prejudice can be said to have been caused to the minor. Therefore, the permission of the Court as such was not necessary. In support of the contention the learned counsel relied upon Amrik Singh v. Karnail singh, 1974 76 PunLR 744 and Dharam Dass v, Surinder Pal, 1986 R.L.R. 416. It was next contended that since it was an adjustment of the decree, the same was binding on the plaintiffs and the suit as such was not maintainable in view of section 47 of the Code. It was also contended that no new contract was created and it merely provided a mode of discharging a decree and, therefore, the suit as such was not maintainable. Reference in this behalf was made to Bharat Bank v. Sehgal Brothers, 1960 AIR(P&H) 459