BASANGOUDA BUDANGOUDA PATIL Vs. RUDRAPPA MALIAPPA NIDWANI

JUDGEMENT

(1.) The question in this appeal is whether the plaintiff's suit for redemption No. 18 of 1023 was rightly dismissed on the ground found by the lower appellate Court, viz., that it was barred under Order XXIII, Rule 1, in as much as the previous suit of 1910 had been withdrawn without permission to institute a fresh suit in respect of the same subject-matter. That other suit was 605 of 1910, It was brought by a brother of the present plaintiff and also by the present plaintiff who was then & minor by his mother and guardian Mallava against the mortgagees for redemption of the suit mortgage which was created so long ago as 1869. In that suit of 1910, the then plaintiffs sued as donees under a gift made by one Savakka, the widow of the original mortgagor. They, accordingly, claimed accounts under the Dekkhan Agriculturists Relief Act and possession of the land.

(2.) On January 24, 1911, that other suit was disposed of in the manner following. The plaintiff's pleader put in a purshis to the following effect: "In the said matter a compromise has been arrived at, and it is prayed that the suit should be dismissed." Accordingly, the Court's order was in the following terms: "Compromised. Dismissed with costs." It does not appear that any notice was given to the defendants of this order. And what is of more importance is that the order on the face of it wholly ignored the provisions of Order XXXII, Rule 7, which requires that, for a compromise of a suit on behalf of an infant, the leave of the Court must be obtained and expressly recorded in the proceedings. Otherwise the agreement is voidable against all parties other than the minor.

(3.) The minor took no steps to get this decree set aside. In 1918 another suit for redemption was brought by Ningangouda who is the present defendant No. 3. But the suit was dismissed on the preliminary ground that it was barred by the suit of 3910, It appears that another defendant (the present defendant No, 4) brought another suit for the same purpose, but the details of that we have not been referred to except that the trial Judge said that that suit was also withdrawn. The present plaintiff has long since attained majority, and it is conceded that the ordinary term of bringing an action to set aside a decree has long since passed in his case.