LAI BABU Vs. RANG BAHADUR SINGH

JUDGEMENT

(1.) The appellant, Lal Babu was the holder of a decree for money. The decree was obtained in a suit in which Lal Babu, who is a minor, appeared through his maternal grandfather as his next friend and a decree was passed for Rs. 2,366-8- 0. The same next friend acting for the minor decree-holder put the decree in execution and during the pendency of that execution a petition was presented to the Court apparently signed by the judgment-debtor and also by the next friend on behalf of the minor decree-holder reporting to the Court that the claim and decree had been satisfied by mutual agreement on the judgment-debtor executing in favour of the decree-holder a certain sale deed. On this petition the Court passed an order under Order 21, Rule 2, Civil P.C, directing satisfaction of the decree to be noted and striking off the execution. Thereafter an application was presented on behalf of the minor through the same next friend praying to the Court to vacate the above order, to set aside the entry of satisfaction and to restore the execution proceeding. At the hearing of this application Dhanukdhari denied that there had been any agreement between him and the judgment debtor to accept that sale deed in full satisfaction, denied that he had signed the compromise petition and alleged that a fraud had been practised on him. It was further stated that the sanction of the Court had not been taken to the compromise and adjustment of the decree and that the arrangement was against the interest of the minor. The Subordinate Judge did not record a definite finding as to the genuineness of Dhanukdhari's signature, but held that assuming it to be genuine it must have been obtained by misrepresentation; he found in favour of the applicant on the remaining points and allowed the application in face of objections by the judgment-debtor both on the facts and on the question of law.

(2.) The judgment-debtor appealed to the District Judge who set aside the finding of the Subordinate Judge that there had been deception practised against the next friend of the minor. The District Judge found--and it is not disputed--that no consent of the Court had been taken to adjustment of the decree and he expressed no opinion as to whether the alleged agreement and adjustment was against the interest of the minor. In his opinion the procedure followed in making this application was incorrect, the proper remedy being by a separate suit. He reversed the decision of the Subordinate Judge and the result is the present appeal. In Order 32, Rule 7(2), Civil P.C. it is indicated that an agreement or a compromise entered into without the leave of the Court with reference to a suit in which a minor is concerned is voidable against all parties other than the minor; and the District Judge relied on the word "voidable" for the proposition that such an agreement or compromise is not void.

(3.) The proposition may be conceded: it is established by the authority in this Court in Ishan Chandra Kundu V/s. Nilratan Adhikari 1923 Pat 375 that a decree passed on such a compromise will stand until vacated in a proper proceeding. It may be that to set aside a compromise decree in a suit the proper remedy is a separate suit; but what we are dealing with here is an adjustment of a decree in the course of execution proceedings, and Section 47, Civil P.C, reserves for determination by the Court executing the decree and not by a separate suit all questions between the parties relating to the execution, discharge or satisfaction of the decree. Therefore, the view of the District Judge cannot correctly apply to the facts of this case. It is clearly pointed out in Ramgulam Sahu V/s. Sham Sahai Das 1920 Pat 750 that Section 47 bars a fresh suit. It is there observed that the proper remedy appears to be either by application for review or by invoking the inherent jurisdiction of the Court. Therefore, it seems that this application cannot be defeated and should not have been dismissed by the District Judge on the ground that the petitioner ought to have had recourse to a separate suit.