TULSIRAM HOSHIYARSINGH RAGHUBANSI Vs. KEVALRAM SOBHARAM RAGHUBANSI

JUDGEMENT

(1.) THE decree-holders in this case are minors and their mother is their next friend. The judgment-debtors when execution was sought produced a receipt for Rs. 750 in full satisfaction of the decretal amount. It has been found as a fact that only Rs. 200 were paid and that a bond for Rs. 200 was executed, and that the mother thus entered into a compromise without the leave of the Court. The learned Judge of the first appellate Court has refused to certify the adjustment of the decree on the ground that Order 32, Rule 7, Civil P.C. applies to execution proceedings and has declined to certify the payment of Rs. 200 in view of Order 32, Rule 6(1).

(2.) IT is argued in appeal that Order 32, Rule 7 does not apply to execution proceedings, but there is ample authority to show that it does. Cases on the point are collected on page 1924 of Chitaley's Code of Civil Procedure, 3rd Edn. (1940), Vol. 2, under Note 11 to Order 21, P. 2. The earliest case is Virupakshappa v. Shidappa 26 Bom. 109 which, it is sought by the learned advocate for the appellants to distinguish on the ground that proceedings after preliminary decree in mortgage suits were at that time always regarded as execution proceedings. In Arunachellam Chetty v. Ramanadhan Chetty 29 Mad. 309, it was held that no adjustment by compromise of a decree by the guardian of a minor could be certified when the guardian had not applied for leave to enter into a compromise. In Davud v. Paramaswami A.I.R. 1917 Mad. 409 it was held that the provisions of Order 32, Rule 7, applied to a compromise entered into even after a decree had been passed, and that an adjustment of a decree to which the minor is a party requires the sanction of the Court. In 56 Mad, 430 it was held that Order 32, Rule 7 applies to execution proceedings, and an argument based on a decision regarding Order 9 (advanced here also) failed. In Muthalakkammal v. Narappa Reddiar A.I.R. 1933 Rang. 186 it was held by Hallifax A.J.C. that Rule 7 of Order 32, Civil P.C., applies to execution proceedings as well as to pending suits. In Veerappa v. Veluswami A.I.R. 1933 Mad. 456 it was held that an adjustment should not be recognised by the Court if not perfected by the guardian obtaining the leave of the Court in that respect and Order 32, Rule 7 was applied to execution proceedings. In Gurumallappa v. Mallappa Martandappa A.I.R. 1920 Bom. 37 it was held that Order 32, Rule 7, Civil P.C., applied to execution proceedings. In Ma Kalema v. Ma Kyaing A.I.R. 1941 Rang. 103 it was held that execution proceedings are a continuance of the suit and the provisions of Order 32, Rule 7, Civil P.C., are applicable to an agreement or compromise made in the course of proceedings for the execution of the decree obtained in the suit. In Shivram v. Manu Lal it was held that under Order 32, Rule 7, the leave of the Court must be expressly recorded in the proceedings if effect is to be given to an agreement or compromise into which a guardian may enter on behalf of a minor with reference to a suit. In the face of this authority and other rulings which may be more appropriately quoted in relation to other points raised in this appeal it is impossible to take the view that Order 32, Rule 7 does not apply to execution proceedings. Next comes the argument that as the mother occupied the dual capacity of guar, dian and next friend she could rely on her position as guardian for power to compromise the suit. A similar argument has been repelled by their Lordships of the Privy Council in Ganesha Row v. Tuljaram 36 Mad. 295 In that case a decree had been passed and pending appeal the guardian entered into a compromise, and it was held by the High Court of Madras that as the money was paid to the person concerned as the representative of the family of which he was the head, the compromise would be binding on the other members. Their Lordships of the Privy Council made it quite clear that when the father or managing member was the next friend or guardian of the minor his powers as father or managing member were controlled by the provisions of law which came into operation when he was the next friend or guardian of the minor. Turning now to Order 32, Rule 6, this rule provides that a next friend or guardian for the suit shall not, without the leave of the Court, receive any money or other moveable property on behalf of a minor either (a) by way of compromise before decree or order, or (b) under a decree or order in favour of the minor. It is further provided that unless the next friend or guardian for the suit has been appointed or declared by competent authority to be guardian of the property of the minor, the Court shall, if it grants him leave to receive the property require such security and give such directions as will, in its opinion, sufficiently protect the property from waste and ensure its proper application. The position here is that the mother who is not a declared or certificated guardian has received Rs. 200 without the leave of the Court, and the question is whether this payment of Rs. 200 should be certified. In Kanshi Ram v. Gohra Shar Hari Chand A.I.R. 1937 Lah. 387 it was held that the certification could not be made as the leave of the Court was not taken in order to accept the payment. The view of the Madras High Court in Pitchakkuttiya v. Doraiswami Moopanar A.I.R. 1925 Mad. 230 was followed in which it was held that the payment could not be recognised by the Court executing the decree unless leave of the Court had been obtained for such payment under Rule 6, and the Privy Council case which I have quoted above was relied on.