HANMANTRAM RADHAKISAN Vs. SHIVNARAYAN ASURAM

JUDGEMENT

(1.) The question referred to the Full Bench is as follows:-When a dispute to which a minor is a party has been submitted to arbitration out of Court, and award made upon such submission has been brought into Court under clause 20 of the Second Schedule, Civil Procedure Code, and the Court has been asked to file it and thereafter pass a decree upon it, neither party objecting, is not the Court bound to sanction this agreement to have the award filed and a decree passed upon it, as for the benefit of the minor and so also certify the decree 1 and if the Court fails to do so, is not the minor entitled to the protection of Order XXXII, Rule 7, Civil Procedure Code ?

(2.) It is necessary to read this question with the main facts in the suit, namely, that a reference to arbitration was made, or agreed to, by a mother on behalf of her minor son, and after the award was published, the mother on behalf of the son applied under clause 20 of the Second Schedule of the Civil Procedure Code that the award should be filed in order that a decree might be passed upon it. The minor thus became, through his next friend, the applicant.

(3.) If the other party to the reference raises no objection to the application, and the award is filed and a decree passed in accordance with it, it does not appear to me that it can be said that there has been any agreement on behalf of the minor with reference to the suit in which the next friend is acting, although were the minor the defendant in such a suit as is numbered under clause 20 of the Second Schedule, it might be that a promise given on behalf of the minor to allow the award to be filed without opposition and a decree passed in accordance with it would be an agreement on behalf of the minor with reference to the suit. If a plaintiff gets everything that he applies for without objection by the defendant, it cannot be said that there is a decree by consent in the strict sense of that term. It is only a decree upon the submission of the defendant. The fact that the defendant does not object would not impose upon the Court the necessity of sanctioning anything as a condition precedent to filing the award and passing a decree upon it. The judgment of Mr. Justice Heaton, one of the referring Judges, puts the question of agreement as a matter of assumption of an undisputed fact. He says : "where, as here, there was a suit to file the award followed after due notice to the defendants by a decree without contest, we must, I think, assume either a tacit or explicit agreement that the award should be filed. It may be urged that this is a question of fact; if so, we can determine it in this appeal which is a first appeal. But when this view, that there was a tacit or explicit agreement between the plaintiff and defendants that the award should be filed without contest, was mentioned in argument, there was no objection made, as I understand, to the assumption. I therefore assume that there was a tacit or explicit agreement." That assumption, as it seems to me, comes to this that the defendant let it be known that he was not objecting to the filing of the award. I do not think that that amounts to an agreement or compromise on behalf of the minor plaintiff with reference to the suit within the meaning of Order XXXII, Rule 7. It also appears to me that there is no conflict between the two cases alluded to in the referring judgments. Mr. Justice Parsons and Mr. Justice Ranade say in Mahadev Balkrishna Kelkar v. Krishnabai (1898) P.J.609, 610 : "It is admitted that the sanction of the Court was not obtained either to the original agreement of reference to arbitration made by Vinayak Balkrishna Kelkar on behalf of his sons or to the agreement of the same person that the award should be filed or to the decree. It is, in our opinion, essantial under Section 462 of the Code that the leave of the Court should have been obtained to the agreement before a decree was passed on it." That, as I understand, is the second agreement mentioned, namely, that the award should be filed. That would be an agreement on behalf of a minor defendant after the application had been numbered as a suit. In Vithaldas v. Dattaram (1901) I.L.R. 26. Bom. 298, 301 : 3 Bom. L.R. 887 Sir Lawrence Jenkins delivering the judgment of the Court said: "Can, then, the decision be supported on the ground that there has been no such leave as Section 462 contemplates ? We think not. That section obviously contemplates the existence of a guardian and a pending litigation; but here, when the agreement was entered into, there was neither a guardian for a suit nor a suit." I infer from the judgment in the case of Mahadev Balkrishna Kelkar v. Krishnabai that the Court there was of opinion that the original agreement of reference before there had been any application numbered as a suit, would not require the leave of the Court.