DAVULURU VIJAYA RAMAYYA Vs. DAVULURU VENKATASUBBA RAO

JUDGEMENT

(1.) The present plaintiffs who are minors were parties to Original Suit No. 416 of 1905 which had been instituted by the present 1st defendant for partition. That suit was in the First Court referred to arbitration (by orders in November 1906 and March 1907). The award was dated 9th April 1907 and a decree passed in accordance with it. The present plaintiffs father appealed from the decree passed on the award (A.S. No. 504 of 1907). The appeal was compromised and a decree was purported to be passed therein by the consent of the parties. The present suit is to have it declared that the consent decree does not bind the plaintiffs, to have it set aside, to obtain possession of the properties mentioned in the plaint, and other reliefs.

(2.) It is admitted that, neither the reference to arbitration nor the consent decree was with leave of the court under 0rder 32, Rule 7 (Section 462 of the Civil Procedure Code, 1882). I shall in the rest of my judgment refer only to the Code of 1908 though most of the decided cases are of course on the Code of 1882. At an earlier hearing it was held by this Court that the compromise was on this ground voidable by the plaintiffs, and findings were called for. The finding on the 4th issue is (admitted to be one of fact which we cannot question in second appeal. The other findings are contested.

(3.) It is contended for the appellant that as the consent decree in appeal is inoperative, the decree passed in the original court must revive, and that, as that decree was passed on an award, it cannot now be set aside, but has become final.