BHIM SINGH Vs. SUNAINA DEVI

JUDGEMENT

(1.) - The plaintiff-respondents filed a suit for realization of Rs. 9,210 on the basis of a mortgage deed dated 24-2-1972. They also prayed for interest both pendente lite and future. There were eight defendents out of when defendants Nos. 3 to 8 were minors. Defendant Nos. 3 and 4 were placed under the guardianship of their father Bhim Singh defendant No. 1 where as defendant Nos. 5 to 8 were placed under the guardianship of their father Paramanand Singh but the father, did not appear on behalf of the minors. Therefore, after discharging the fathers, from guardianship of minor defendants they were placed under the guardianship of Shri Satya Narain Singh, Advocate. Subsequently as application was filed purporting to be on behalf of the major defendants for referring the dispute between the parties to the arbitration of five persons who were named in the petition. By order dated 4.9-1979 the petition for referring the matter to the Arbitrators was allowed and the case was referred to the Arbitrators to prepare award within the time mentioned in the order. The award was given on 27-1-1980 which was filed in the Court on 30-1-1990. Thereafter an objection under Section 30 of the Arbitration Act was filed on behalf of the defendants with a prayer to set aside the award and not confirm the same. Thereafter several objections such as fraud by the Punches, non-participation of two Punches in the proceeding etc. were raised.

(2.) THE trial court after hearing the parties rejected the objections and passed a decree in terms of the award. THEreafter an appeal was filed on behalf of the defendants. THE appeal by the minor defendants was filed by their guardian ad litem who had not filed any objection under Section 30 of the Act. In the appeal the objections filed by the major defendants were raised and the court below in my opinion has rightly rejected the same. Another question that was raised on behalf of the minor defendants-appellants was that neither any application for reference to arbitration was filed on their behalf nor any leave for referring the matter to arbitration was granted by the Court as provided under Order XXXII, Rule 7 of the Code of Civil Procedure. THE court below rejected this argument also on the ground that this objection was not raised within 30 days of the submission of the award in the court below. It, therefore, said that this point cannot be raised. THE court below also said that the record would show that the defendants appeared for minors as well by filing vakalatnama. It therefore, rejected this argument also. THEreafter this second appeal has been filed by the defendants both major and minors.

(3.) I have no doubt that the interest of minors was properly represented by their fathers before the Arbitrators. I have also no doubt that the defendants, in order to avoid the decree passed against them, are taking this technical plea. In fact I tried to find some way to defeat Mr. Ghose but I am sorry, I could not find any way out. Order XXXII, Rule 7 of the Code is quite clear. It prohibits the next friend to enter into any agreement or compromise without the leave of the Court expressly recorded in the proceeding to enter into any agreement or compromise. This provision has been made to safeguard the interest of the minors and without any exception in any case, it has been held to be mandatory. As I have indicated in this case that there was neither any application on behalf of the minors for referring the matter to Arbitrator nor there was any leave granted by the Court to that effect. The Punches did not have any jurisdiction to adjudicate on the rights of the minors. The award, therefore, as against the minors was void and this point could justifiably be taken before the court of appeal below.