{"id":118818,"date":"1962-04-27T00:00:00","date_gmt":"1962-04-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/dokku-bhushayya-vs-katragadda-ramakrishnayya-on-27-april-1962"},"modified":"2017-12-16T22:19:11","modified_gmt":"2017-12-16T16:49:11","slug":"dokku-bhushayya-vs-katragadda-ramakrishnayya-on-27-april-1962","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/dokku-bhushayya-vs-katragadda-ramakrishnayya-on-27-april-1962","title":{"rendered":"Dokku Bhushayya vs Katragadda Ramakrishnayya on 27 April, 1962"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Dokku Bhushayya vs Katragadda Ramakrishnayya on 27 April, 1962<\/div>\n
Equivalent citations: 1962 AIR 1886, \t\t 1963 SCR (2) 499<\/div>\n
Author: A Sarkar<\/div>\n
Bench: Sarkar, A.K.<\/div>\n
           PETITIONER:\nDOKKU BHUSHAYYA\n\n\tVs.\n\nRESPONDENT:\nKATRAGADDA RAMAKRISHNAYYA\n\nDATE OF JUDGMENT:\n27\/04\/1962\n\nBENCH:\nSARKAR, A.K.\nBENCH:\nSARKAR, A.K.\nSUBBARAO, K.\nMUDHOLKAR, J.R.\n\nCITATION:\n 1962 AIR 1886\t\t  1963 SCR  (2) 499\n\n\nACT:\nCivil  Procedure-Decree\t against minor-Execution  and  sale-\nApplication  for setting aside sale-Compromise by  guardian-\nLeave of Court not obtained-Whether binding on minor-Code of\nCivil Procedure, 1908 (Act V of 1908), s. 14, O. 32, r. 7.\n\n\n\nHEADNOTE:\nOne B obtained a decree for money against the appellant\t and\nhis  father.  The appellant was a minor and was\t represented\nby  his maternal grandfather as his guardian.  In  execution\ncertain\t properties  were sold and the\tappellant  filed  an\napplication for setting aside the sale through his guardian.\nThe guardian entered into a compromise with the decree hold-\ner and the auction purchaser under which the application was\nwithdrawn.  Subsequently the sale was confirmed.  After\t at-\ntaining\t majority  the appellant filed a  suit\tfor  setting\naside  the  order  for withdrawal  of  the  application\t for\nsetting\t aside\tthe  sale  and\tfor  a\trehearing  of\tthat\napplication on the ground that the guardian bad not obtained\nthe  leave of the court as required by O.32, r : 7  Code  of\nCivil Procedure before entering into the compromise.\nHeld, (per Suhba Rao and Mudholkar, jj., Sarkar, J.  contra)\nthe  O.32, r.7 was not applicable to the withdrawal  of\t the\napplication  for  setting aside the sale and the  order\t for\nwithdrawal of that application was binding on the appellant,\nOrder  32,  r.\t7 is applicable only  to  \"an  agreement  or\ncompromise  with reference to the suit\", and there  are\t the\nfollowing  limitations\tto  its\t applicability:\t (i)  it  is\napplicable  only where the rights put in issue in  the\tsuit\nare  involved and not to mere procedural steps; (ii)  it  is\napplicable  only  during  the pendency\tof  the\t suit  which\nincludes  execution proceedings; and (iii) the agreement  or\ncompromise  must  be with a party to the suit.\t Though\t the\napplication for setting aside the sale was an application in\nexecution of the decree, the agreement or compromise entered\ninto by the guardian with the auction purchaser to  withdraw\nthe  application did not affect the rights  and\t liabilities\ndeclared  by  the decree and therefore leave  of  the  court\nunder O.32, r.7 was not necessary.  Section 141 of the Code\n500\ncould  not be utilised to, make O.32, r.7 applicable to\t the\nagreement in question. as s. 141 was applicable to  original\nproceedings and not to proceedings in execution.\nVirupakshappa v.Shidappa and basappa. (1901) I.L.R. 26\tBom.\n110, Arunachellam Chetty v. Ramanadhan Chetty, (1906)  I.L.R\n29 Mad. 309 Muthalakkammal v. Narappa Reddier, (1933) I.L.R.\n56  Mad.  430, Jitendra Nath Roy v. Samarendra\tNath  Mitter\n(1943)\tL.R.  70  I.A.\t68,  Katneni  Venkatakrishnayya\t  v.\nGarapati China Kanakayya, I.L.R. (1938) Mad. 819 and  Thakur\nPrasad\tv.  Sheikh  Fakir Ullah, (1894)\t L.R.  22  I.A.\t 44,\nreferred to.\nPer  Sarkar, J.-The leave of the court under O.32, r. 7\t was\nnecessary  before  the guardian could enter into  the  agree\nment  or compromise to withdraw the application for  setting\naside the sale.\t There was no justification for limiting the\noperation  of  the  rule in  its  application  to  execution\nproceedings only to compromises which directly affected\t the\nrights\tand liabilities under the decree; it was  applicable\nto  all\t compromises which brought a proceeding\t to  an\t end\nthereby\t affecting the rights and liabilities of the  minor,\nThe compromise in the present case was not merely  concerned\nwith  the conduct of proceedings but it\t seriously  affected\nthe liability of the appellant under the decree.\nVirupakshappa  v. Shidappa, (1901)1.L.R. 26 Bom. 109  Rhodes\nv. Swithenbank, (1889) L. R. 22 Q. B. D. 577, Gurmallappa v.\nMallappa,   (1920)   I.\t L.R.  44  Bom.\t 574   and   Katneni\nVenkatakrishnayya v. Ganapati China Kanakayya, (1938) I.L.R.\nMad. 819, referred to.\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL  APPELLATE  JURISDICTION: Civil Appeal  483  of  1957.
\nAppeal from the judgment and decree dated November 25, 1949,
\nof the Madras High Court in Appeal No. 66 of 1946.
\nA.   V.\t Viswanatha  Sastri  and  T.V.R.  Patachar  for\t the
\nappellant.\n<\/p>\n
Bhimsenakarama and B K.B. Naidu, for respondents Nos.  1 and\n<\/p>\n
2.
\nT.   Satyanarayan, for respondents Nos. 7 and 8.
\n1962.  April 27.  Sarkar, J., delivered a separate Judgment.
\nThe Judgment of Subba Rao and Mudholkar, JJ., was  delivered
\nby Subba Rao, J.\n<\/p>\n
\t\t\t    501<\/span><\/p>\n
SARKAR,\t J.-In\t1929, one Bapiah filed a  suit\tagainst\t the
\nappellant, then a minor, his father and another person on  a
\npromissory Dote executed by the two last mentioned  persons,
\nThe  appellant was represented in that suit by his  maternal
\ngrandfather as his guardian ad litem.  ‘A decree was  passed
\nin that suit.  The decree holder put the decree in execution
\nand obtained an order for the sale of certain properties  in
\nwhich  the  appellant was interested.  The  properties\twere
\nsold in due course in favour, it is said., of a clerk of the
\ndecree\tholder.\t  Thereafter, the  appellant’s\tguardian  ad
\nlitem  made an application under O. 21 r. 90 of the Code  of
\nCivil Procedure for setting aside the sale.  Later, however,
\nthe  guardian ad litem came to a settlement with the  decree
\nholder and the auction purchaser that the guardian ad  litem
\nwould give up the contention regarding the invalidity of the
\nsale and withdraw the petition to set it aside and also give
\nup  possession\tof  the\t properties  sold  to  the   auction
\npurchaser  and\tdecree holder and the auction  purchaser  in
\ntheir  turn  would  give up their claim\t for  costs  of\t the
\npetition.   In pursuance of this agreement the petition\t was
\nwithdrawn and dismissed by order made on August 12, 1932.
\nAfter attaining majority, the appellant filed a suit in 1944
\nto  set\t aside the order of August 12, 1932, and for  a\t re-
\nhearing of the petition which was dismissed by the order  of
\nthat  date.  It is from this ,suit that the  present  appeal
\narises.\t  The  suit was decreed by the trial  Court  but  on
\nappeal\tthe decision of the trial Court was reversed by\t the
\nHigh  Court  at Madras and the suit was ordered to  be\tdis-
\nmissed.\t There is no dispute that the suit was competent and
\nwithin time.\n<\/p>\n
The  only  question in this appeal is whether the  order  of
\nAugust 12, 1932 is voidable under O. 32 r. 7 of the Code  of
\nCivil  Procedure,  1908, at the instance of  the  appellant.
\nThat rule forbids the
\n502<\/span>
\nguardian  for  the  suit to “enter into\t any  agreement\t  or
\ncompromise on behalf of a minor with reference to the  suit”
\nwithout\t the  leave of the court and provides that  the\t any
\nsuch agreement or compromise entered into without the  leave
\nof  the\t court shall be voidable against all  parties  other
\nthan minor.\n<\/p>\n
Order 32, r. 7 of the present Code corresponds to s. 462  of
\nthe  Code  of 1882.  It has been settled since the  Code  of
\n1882 was in force that the provision under the consideration
\napplies to proceedings in execution though it only  mentions
\nagreement  or\tCompromise with reference to the  suit.\t  As
\nlong  ago  as 1901, Jenkins C.J. said  in  Virupakshappa  v.
\nShidappa,  (1) “I will first deal with the question  whether
\nsection\t  462\tapplies\t to  a\t compromise   of   execution
\nproceedings.   On the words of the section I think it  does;
\napplications  in execution are proceedings in the  suit,  so
\nthat a compromise of such a proceeding would be a compromise
\nwith  reference\t to the suit.  This view has  been  followed
\never since.\n<\/p>\n
The  High  Court  took\tthe view that  a  compromise  of  an
\nexecution  proceeding would be within O. 32, r. 7 only\twhen
\nit  affected directly the rights and liabilities created  by
\nthe decree.  It observed that the compromise in the  present
\ncase  was not affected by the rule as it concerned only\t the
\nrights and liabilities under the auction sale and not  those
\narising under the decree.\n<\/p>\n
I am unable to agree with this view.  The High Court  rested
\nitself\ton  the fact that all the reported  decisions  dealt
\nwith cases in which the agreements had directly affected the
\nrights\tand liabilities under the decree.  This does not  to
\nmy  mind  furnish  sufficient  justification  for  the\tHigh
\nCourt’s view.  No decision has been brought to our notice in
\nwhich it has been held that O. 32, r. 7 does not apply to  a
\ncompromise of execution proceedings
\n(1)  (1901) I.R.L. 26 Bom. 109, 114.\n<\/p>\n
 503<\/span><\/p>\n
which  does not directly affect the rights  and\t liabilities
\ncreated\t by  the  decree.  It does not seem to\tme  that  on
\nprinciple the High Court’s view can be justified.
\nIt  is\ttrue  that  O.\t32, r.\t7  does\t not  apply  to\t all
\nagreements.   In Bhodes v. Swithenbank (1) it was  observed,
\n“This is an action by an infant by means of her next friend,
\nwho undoubtedly has the conduct of the action in his  hands.
\nIf,  however,  the next friend does anything in\t the  action
\nbeyond\tthe mere conduct of it, whatever is so done must  be
\nfor the benefit of the infant, and if, in the opinion of the
\nCourt  it  is  not so, the infant is  not  bound”.   It\t may
\ntherefore  be said that an agreement concerning the  conduct
\nof  the\t proceeding  does not require the  sanction  of\t the
\nCourt.\n<\/p>\n
Beyond\tthis,  I  find no  justification  for  limiting\t the
\noperation of the rule.\tI observe that Jenkins C.J. in\twhat
\nI  have earlier read from his judgment, said that  the\trule
\n“applies   to  a  compromise  of   execution   proceedings”.
\nTherefore,  it\tseems to me that according  to\tthe  learned
\nChief  Justice\tit applies to all compromises  of  execution
\nproceedings,  excepting, of course,  compromises  concerning
\nthe  conduct  of  them,\t and  this  whether  the  compromise
\ndirectly affects the rights or liabilities under the  decree
\nor  not.   I think the principle of the rule  was  correctly
\nstated by Heaton J. when dealing with s.     462 of the Code
\nof 1882 he observed in Gurmallapa v.\tMallappa (2),  “That
\nsection,  I  think,  necessarily  implies  that\t during\t the
\ncontinuance of proceedings in Court, the dispute between the
\nminor and another party which the Court had to decide  could
\nnot  be compromised except by the guardian ad litem  of\t the
\nminor, and by him only with the leave of the Court.” I think
\nthat  any  compromise  of a proceeding\twhich  concerns\t the
\ndispute involved in it
\n(1)  (1889) L.R. 22.  Q.B.D. 577,578.\n<\/p>\n
(2) (1920)I.L.R.44 Bom.574,581.\n<\/p>\n
504<\/span><\/p>\n
would  require\tthe sanction of the Court.   I\tshould\talso
\npoint  out that sub-r. (6) of r. 3 of O. 32 provides that  a
\nperson\tappointed  guardian for the suit for a\tminor  shall
\nunless\this  appointment  is terminated,  continue  as\tsuch
\nthroughout  all\t the  proceedings arising out  of  the\tsuit
\nincluding the proceedings in execution of a decree.
\nThe  object  behind  O. 32 seems to me to be  that  when  an
\ninfant\tis involved in a legal proceeding, he should have  a
\nguardian  assigned to him and that guardian should be  under
\nthe  control  of the Court before which\t the  proceeding  is
\npending\t so  as\t not to be able to  affect  the\t rights\t and
\nliabilities  of\t the  infant,  the  subject  matter  of\t the
\nproceeding, by a compromise which the Court has not approved
\nas one for the benefit of the infant.  If this is the  prin-
\nciple, as I think it is, there would be no justification for
\nlimiting  the  operation of the rule in its  application  to
\nexecution  proceedings, only to compromises  which  directly
\naffect\tthe  rights and liabilities under the  decree.\t The
\nrule, in my view, would apply, among others, to\t compromises
\nwhich  bring a proceeding to an end and thereby\t affect\t the
\nrights or liabilities of the infant involved in it.  I think
\nthis   view  receives  support\tfrom  the  observations\t  of
\nVaradachariar  J. in Katneni Venkatakrishnayya\tv.  Ganapati
\nChina Kanakayya(1) that, “Rule 7 deals with the conduct of a
\nnext  friend’  as  such who, as pointed\t out  in  Bhodes  v.
\nSwithenbank(2)\tis  an officer of the Court to\tconduct\t the
\nsuit; and the principle underlying are 7 is that whenever he
\nproposes  to  do anything beyond the normal conduct  of\t the
\nsuit,  he has to obtain the leave of the Court to  do  so.”,
\nQuite  obviously the word “suit” in this  observation  would
\ninclude a proceeding in execution.\n<\/p>\n
It is of some interest to point out that the learned  Judges
\nof the High Court were careful to
\n(1)  (1938) I.I.R. Mad. 819,828.\n<\/p>\n
(2)  (1889) L.R. 22 Q.B.D. 577,578
\n\t\t\t    505<\/span>
\nuse  the  word\t“directly”;  they  said\t the  agreement\t  or
\ncompromise  in the present case did “not directly deal\twith
\nor  regulate  the  extent  and\tnature\tof  the\t rights\t and
\nliabilities  under  the\t decree,  which\t stand\tintact\t and
\nunaffected as before.” This seems to me to indicate that the
\nlearned\t Judges were conscious that the compromise  in\tthis
\ncase  affected the rights and liabilities of  the  appellant
\nunder  the decree at least indirectly.\tIt seems to me\tthat
\nif  the rule prohibits an agreement which  directly  affects
\nthe  rights  and liabilities of an infant  under  a  decree,
\nthere  would  be  no  reason to\t think\tthat  it  would\t not
\nsimilarly prohibit an agreement deliberately made to  affect
\nthe  same rights and liabilities indirectly.  The  agreement
\nchallenged in this’ case, is, as I shall endeavour to  show,
\nof this kind.\n<\/p>\n
Turning now to the facts of this case I think the proceeding
\nin which the compromise was arrived at was in the course  of
\nexecution  of the decree.  It was a proceeding to  challenge
\nthe  validity  of  an execution sale.  It  was\ttherefore  a
\nproceeding,  a\tcompromise in reference to  which  would  be
\ngoverned  by  O.  32,  r. 7 under  the\trule  laid  down  in
\nVirupakshappa’s case(1).\n<\/p>\n
It  also  seems\t to me clear that  the\tcompromise  was\t not
\nconcerning  the conduct of the proceeding.  It\tbrought\t the
\nproceeding to an end and its result was that the appellant’s
\nright  to  question the validity of the sale was  lost.\t  He
\nbecause bound by the sale, good or bad.\t His liability under
\nthe decree was reduced only by the amount of the proceeds of
\nthe sale, however inadequate a price might have been fetched
\nin  it., It may be that if the proceeding to set  aside\t the
\nsale  had been continued and not abandoned, the\t sale  might
\nhave  been  set aside and a fresh sale, if one\ttook  place,
\nmight have fetched a larger prim and thereby diminished\t the
\nliability
\n(1)  (1901) I.L.R 26 am. 109. ;I.\n<\/p>\n
506<\/span><\/p>\n
under  the  decree to a greater extent.\t Such  a  compromise
\ncannot\tbe  said to be one relating to the  conduct  of\t the
\nproceeding.   It  seems\t to  me also  to  be  one  affecting
\nseriously  the liability of the appellant under\t the  decree
\nsince  it deprived him of his right to have  that  liability
\nreduced by a larger amount by a sale properly held.  It is a
\ncompromise  which from all points of view, should have\tbeen
\nmade with the sanction of the Court.\n<\/p>\n
Before\tconcluding I think it right to say that\t the  decree
\nholder\tand auction purchaser can derive no assistance\tfrom
\nJitendra  Nath\tRao v. Samarandra Nath Mitter(1).   In\tthat
\ncase   the  Judicial  Committee\t held  that  the   agreement
\ncontemplated  by  O. 32, r. 7 is one which is  made  with  a
\nparty to the suit or proceeding.  Here the agreement was  in
\nthe  execution\tproceeding and it was made with\t the  decree
\nholder\tand the auction purchaser both of whom were  parties
\nto it, the former having been a party to the suit itself out
\nof which the execution proceeding arose.\n<\/p>\n
I think this appeal should be allowed.\n<\/p>\n
J.SUBBA\t ‘RAO,\tJ. This appeal raises the  question  of\t the
\nconstruction  of the provisions of Order XXXII, r. 7 of\t the
\nCode of Civil Procedure.\n<\/p>\n
Bhushayya, the appellant, and respondents 7 and 8 herein are
\nthe sons of one Dokka Adeyya (since died).  On the basis  of
\na promissory note executed by Dokku Adeyya and respondent  5
\nin  favour of one Bapayya, the latter filed C.S. No.  88  of
\n1929  in  the Court of the Subordinate Judge,  Bapatla,\t and
\nobtained a decree therein.  In that suit, the appellant, who
\nwas then a minor, was a defendent and was represented by his
\nmaternal grandfather’ as his guardian.\tIn execution of\t the
\nsaid decree, properties of Dokku Adeyya were brought
\n(1)  (1943) L.R. 70 I.A. 68.\n<\/p>\n
\t\t\t    507<\/span><\/p>\n
to  sale  and were purchased by the  decree-holder’s  clerk,
\nBapiraju,  subject to the mortgage in favour of the  decree-
\nholder.\t  Before the sale was confirmed, on March 29,  1932,
\nthe  appellant,\t represented by\t his  maternal\tgrandfather,
\nfiled E.A. No. 136 of 1932 to set aside the sale under Order
\nXXI,  r.  90  of  the Code of  Civil  Procedure.   The\tsaid
\npetition was posted for inquiry to August 12, 1932.  On that
\nday, a memorandum was filed in the court by the guardian  of
\nthe appellant to the effect that the matter was adjusted and
\nthat  the  petition  should  be\t dismissed  as\thaving\tbeen
\nwithdrawn.   No\t sanction of the court was obtained  by\t the
\nguardian for withdrawing the petition.\tOn the said day, the
\ncourt\tpassed\t an  order   dismissing\t  the\tapplication.
\nSubsequently,  the sale was confirmed.\tOn October 9,  1944,
\nthe appellant, who bad then attained majority, filed a suit,
\nO.S.  No. 80 of 1944, on the file of the Subordinate  Judge,
\nTenali,\t for setting aside the order dated August  12,\t1932
\nand  to\t try the application for setting aside the  sale  on
\nmarket.\t It was, inter alia pleaded that the said order\t was
\nvoid  in as much as the guardian of the\t appellant  withdrew
\nthe  application  without the sanction of the  court  as  he
\nshould\tdo  under  Order XXXII, r. 7 of the  Code  of  Civil
\nProcedure,  hereinafter\t referred  to  as  the\tCode.\t The
\ncontesting  defendants,\t some of them being  the  subsequent
\naliences,  filed written statements seeking to\tsustain\t the
\nvalidity of the said order.  For the purpose of this  appeal
\nwe need not notice any other point.  The learned Subordinate
\nJudge held that the withdrawal of the said petition and\t the
\nconsequent  dismissal thereof was void, as the guardian\t did
\nnot obtain the sanction of the Court under Order XXXII, r. 7
\nof  the\t Code.\t On  appeal, the  High\tCourt  came  to\t the
\nconclusion  that  Order\t XXXII, r. 7 of\t the  Code  had\t not
\nrelevance  to an application for setting aside the  sale  in
\nthe circumstances of the cam.  Hence the appear.\n<\/p>\n
508<\/span><\/p>\n
The only question that arises in this appeal is whether\t the
\nwithdrawal  of\tthe  said petition by the  guardian  was  in
\ncontravention  of  Order XXXII, r. 7 of\t the  Code.   Before
\nconstruing  the\t provisions of the said Order, it  would  be
\nconvenient  to\tnotice what exactly were the  terms  of\t the
\nagreement.   The High Court in its judgment  summarised\t the
\nfactual position on that date thus:\n<\/p>\n
\t      “The  agreement is that  the  guardian-adlitem
\n\t      should  give up the contentions regarding\t the
\n\t      invalidity  of  the auction  sale\t and  should
\n\t      withdraw\tthe petition to set aside  the\tsale
\n\t      and  also\t deliver up possession of  the\tpro-
\n\t      perties  purchased, to  the  auction-purchaser
\n\t      and  that the decree-holder  and\tauction-pur-<\/p><\/blockquote>\n
\t\t\t    chaser should give up their claim for costs\t o
\nf
\n\t      the said petition.  It was in pursuant of this
\n\t      agreement that the petition was withdrawn\t and
\n\t      dismissed (no costs being given)”.\n<\/p>\n
This  is  the correct petition, and we\tneed  not  elaborate
\nfurther on it.\tOrder XXXII, r. 7, clauses (1) and (2)\tread
\nas follow:\n<\/p>\n
\t      Clause (1) “No next friend or guardian for the
\n\t      suit  shall,  without the leave of  the  Court
\n\t      expressly\t recorded in the proceedings,  enter
\n\t      into any agreement or compromise on behalf  of
\n\t      a minor with reference to the suit in which he
\n\t      acts as next friend or guardian.\n<\/p><\/blockquote>\n
\t      Clause (2).  “Any such agreement or compromise
\n\t      entered into without the leave of the Court so
\n\t      recorded shall be voidable against all parties
\n\t      other than the minor.”\n<\/p><\/blockquote>\n
In  Madras,  there is also another clause, viz.,  cl.  (1-A)
\nintroduced by an amendment made in 1910 and it reads-\n<\/p>\n
\t      “Where an application is made to the Court for
\n\t      leave to enter into an agreement or
\n\t       509<\/span>
\n\t      compromise  or  for withdrawal of\t a  suit  in
\n\t      pursuance\t of a compromise or for\t taking\t any
\n\t      other  action  on behalf of a minor  or  other
\n\t      person  under  disability and  such  minor  or
\n\t      other  person under disability is\t represented
\n\t      by counsel or pleader, the counsel or  pleader
\n\t      shall  file  in Court with the  application  a
\n\t      certificate  to the effect that the  agreement
\n\t      or  compromise  or action proposed is  in\t his
\n\t      opinion for the benefit of the minor or  other
\n\t      person  under disability.\t A decree  of  other
\n\t      for the compromise of a suit, appeal or matter
\n\t      to  which\t a  minor  or  other  person   under
\n\t      disability   is  a  party\t shall\trecite\t the
\n\t      sanction\tof the Court thereto and ‘shall\t set
\n\t      out the terms of the compromise as in Form No.
\n\t      24 in Appendix  to this schedule.”\n<\/p><\/blockquote>\n
Under this Order, no guardian shall enter into an  agreement
\nor compromise on behalf of a minor with reference to a\tsuit
\nin  which  he acts as next friend or  guardian.\t  The  short
\nquestion  is, what is the meaning to be given to  the  words
\n“an  agreement or compromise with reference to the  suit”  ?
\nMr.  Viswanath\tSastri, learned counsel for  the  appellant,
\nraised\ttwo  contentions, namely : (1)\tThat  the  execution
\nproceedings  are proceedings with reference to the suit\t and
\ntherefore  any\tcompromise  or\tagreement  entered  into  or
\neffected  by a guardian of a minor in execution\t proceedings
\naffecting  his rights procedural or substantive, whether  in
\nissue  in  the suit or declared by the decree or  not  would
\nrequire\t the sanction of the court and an agreement  entered
\ninto without that sanction would be void. (2) An application
\nto set aside a sale is a proceeding with. in the meaning  of
\ns.  141 of the Code’ and, therefore, O. XXXII, r. 7, as\t far
\nas   it\t can  be  made\tapplicable,  would  apply  to\tsuch
\nproceeding;  as\t the  compromise was  entered  into  by\t the
\nguardian  in such a proceed without the leave of the  Court,
\nthe said com-\n<\/p>\n
510<\/span><\/p>\n
promise as well as the order made pursuant thereto was void.
\nOn  the other hand, Mr. Bhimasankaram, learned\tcounsel\t for
\nthe respondents, while supporting the test laid down by\t the
\nHigh  Court,  namely, that an agreement to fall\t within\t the
\nmischief  of the said Order shall be such as deals  directly
\nwith  the  rights and liabilities involved in  the  suit  or
\ndefined by the decree, attempted to abridge the scope of the
\ntest  further  by trying to make a  distinction\t between  an
\nagreement  relating  to rights conferred by the\t decree\t and
\nth%t only relating to liabilities imposed thereunder.
\nOrder  XXXII,  r. 7, is one of the  provisions\tdesigned  to
\nsafeguard the interests of a minor during the pendency of  a
\nsuit  against  hostile,\t negligent or collusive\t acts  of  a
\nguardian.   The scope of the provisions is implicit  in\t the
\nphraseology  used  therein.  The  crucial  words  are\t“any
\nagreement  or  compromise … with reference to\t the  suit”.
\nThe words “with reference”, if taken out of the context, are
\nof  the widest import.\tThey may take in’  every  procedural
\nstep  in  the  conduct\tof  a  suit,  such  as\tadjournment,
\nadmission of documents, inter locutories, inspection  etc.,,
\nand  obviously it could not have been the intention  of\t the
\nLegislature  that agreements in respect of  such  procedural
\nsteps  should conform to the requirements of the  rule.\t  If
\nthat be not so, the rule instead of protecting the interests
\nof a minor would easily become a major obstacle in disposing
\nof suits in which a minor is ranged as party on one side  or
\nthe  other.  So consistent with the purpose of the rule\t the
\nwords  “‘with reference to the suit” must be limited to\t the
\nrights put in issue in the suit.\n<\/p>\n
The  next limitation is that the. protection is only  during
\nthe  pendency of the suit.  When does a Suit come to an\t end
\nIt has been held that for the
\n\t\t\t    511<\/span>
\npurpose\t of  the  said rule an\texecution  proceeding  is  a
\ncontinuation  of a suit: see Virupakshappa v.  Shidappa\t and
\nBasappa(1), Arunachellam Chetty v. Ramanadhan Chetty(2), and
\nMuthalakkammal\tChetty v. Narappa Reddiar(3).  If it  was  a
\ncontinuation,  the rule would also apply to an agreement  or
\ncompromise with reference to the said execution\t proceeding.
\nBut, just like in the case of a suit, in the case of  execu-
\ntion proceedings also, the agreement or compromise shall  be
\none affecting rights or liabilities ascertained or  declared
\nby  the decree put in execution.  As in the case of a  suit,
\nso  also  in  the case of an execution\tof  a  decree,\tmere
\nprocedural steps not affecting the rights or liabilities  so
\ndeclared  are not governed by the provision.   The  guardian
\nmay  agree  to an adjournment of a sale, to a  waiver  of  a
\nfresh  proclamation, to a reduction of upset price etc.\t  It
\ncould  not have been the intention of the  Legislature\tthat
\nevery time such a step is taken, the procedure laid down  in
\nOrder XXXIII, r. 7, of the Code should be complied with.
\nThe  next  limitation is that the  agreement  or  compromise
\nshall  be entered into with a party to a suit or  his  legal
\nrepresentative.\t The rule does not provide for dealings of a
\nguardian  with persons not parties to a suit.  The  question
\ndirectly arose in a case which went up to the Privy Council,
\nviz.,  in  Jitendra Nath Roy v. Samarandra  Nath  Mitter(4).
\nThere,\ta decree obtained in favour of a minor,\t represented
\nby   his  guardian,  was  assigned  by\tthe   guardian\t for
\nconsideration  to another without obtained the leave of\t the
\ncourt.\t Advertising to the question of validity of such  an
\nassignment, Lord Atkin observed
\n\t      “They (the Judges of the High Court) took\t the
\n\t      view   that,  in\tthe  rule  in  the   phrase,
\n\t      “agreement or compromise… with reference
\n(1)  (1901)  I.L.R.  26 Bom. 110.(2) (1906) I.L.R.  29\tMad.\n<\/p>\n
309.
\n(3)  (1939)  I.L.R. 56 Mad. 430.(4) (1949) L.R. 70 I.A.\t 68.\n<\/p>\n
72.
\n512<\/span>
\n\t      to  the suit” the words mean agreement with  a
\n\t      party to the suit and do not cover a  transfer
\n\t      of  a decree to someone then unconnected\twith
\n\t      the  suit,  even assuming that  such  transfer
\n\t      could  properly be described as an  agreement.
\n\t      They  expressed their agreement on this  point
\n\t      with a decision of the Full Bench of the\tMad-
\n\t      ras  High Court in  Katneni  Venkatakrishnayya
\n\t      Garapati\tChina Kanakayya(1), which is  preci-
\n\t      sely in point.  It appears to their  Lordships
\n\t      that  it cannot have been intended to  require
\n\t      the  leave of the court to an  agreement,\t for
\n\t      example,\tmade with a non-party.to  finance  a
\n\t      suit,  whether with a stipulation\t to  receive
\n\t      part of the proceeds or not.  The\t Conjunction
\n\t      of  the word “agreement” with the\t word  “com-
\n\t      promise”\tappears\t to  indicate  the  kind  of
\n\t      agreement intended.”\n<\/p>\n
We agree with these observations.  The result is that  Order
\nXXXII, r. 7, of the Code will apply to only to an  agreement
\nor  compromise entered into by a guardian of a party to\t the
\nsuit,  who is a minor with another party thereof during\t the
\npendency of the suit and the execution proceedings.
\nThe  next  question is whether the application\tfor  setting
\naside  a  sale\tis a proceeding in execution  of  a  decree.
\nOrder  XXI  of\tthe  Code  prescribes,\tamong  others,\t the
\ndifferent  modes of execution, one of them  being  execution
\nagainst the property of a judgraent-debtor.  The Order\talso
\nprescribes a procedure for sale of the said property and for
\nsetting\t  aside\t a  sale  obtained  by\tfraud  or   material
\nirregularity.  Under Order XXI, r. 92, where no\t application
\nis made under r. 89, r. 90, or r. 91 to set aside a sale  or
\nwhere  the  application is made and  disallowed,  the  Court
\nshall  make an order confirming the sale, and thereupon\t the
\nsale shall become abso-\n<\/p>\n
(1)  I.L.R. 1938 Mad. 814.\n<\/p>\n
\t\t\t    513<\/span><\/p>\n
lute; under sub-r. (3) of r. 92 of the said Order, “No\tsuit
\nto set aside an order made under this rule shall be  brought
\nby  any\t person\t against  whom\tsuch  order  made.”  It\t is,
\ntherefore,  clear that Order XXI provides  a  self-contained
\nmachinery  for executing a decree and for deciding  disputes
\nthat  may  arise  in connection\t with  the  execution.\t The
\nexecution  is  not closed till the decree is  discharged  or
\nbarred\tby limitation.\tIn this view, we must hold  that  an
\napplication  filed by a judgment-debtor to set aside a\tsale
\nis an application in execution of a decree.
\nEven  so,  as we have already indicated,  to  attract  Order
\nXXXII, r. 7, of the Code the agreement or compromise entered
\ninto between the guardian and the auction-purchaser shall be
\nan  agreement  or  a  compromise  affecting  the  rights  or
\nliabilities declared by the decree.  Can it be said that  in
\nthe  present case the agreement affected any such  right  or
\nliability  ? The suit was on the basis of a promissory\tnote
\nexecuted  by  the father and the brother of  the  appellant.
\nThe appellant was also a party to the suit.  The decree\t was
\nfor  recovery of the amount covered by the  promissory\tnote
\nwith  interest.\t It did not in any way affect the  title  of
\nthe  appellant to the entire or to any part of the  property
\nof  the\t family\t sold  in  execution  of  the  decree.\t The
\nappellant,  by\this guardian, filed an\tapplication  to\t set
\naside  the  sale  on  the  ground  of  fraud  and   material
\nirregularity  in  the  conduct of the  sale.   The  guardian
\nagreed\t to  withdraw  the  said  application\ton   certain
\nconditions.   The agreement also did not in any\t way  affect
\nthe  rights or liabilities declared under the  decree.\t Not
\nwith  stand. ing the agreement, the decree was left  intact.
\nIt is said that if the sale was set aside, the decree  would
\nhave  to be executed afresh, but as it was not aside on\t the
\nbasis of the said agreement, the sale price in discharge  of
\nthe   decree;  therefore,  the\targu.  ment  proceeds,\t the
\nagreement affected the discharge
\n514<\/span>
\nof the decree.\tThe father of appellant could have sold\t the
\nfamily property out of court and could have out of the\tsale
\nproceeds, discharged the decree.  In that event it could not
\nbe  said  that the sale affected the rights  or\t liabilities
\ndecree.\t  If so, the sale of property through  court  cannot
\nequally\t affect any such rights or liabilities\tdeclared  by
\nthe  decree.   We?  therefore, hold that  the  agreement  or
\ncompromise entered into by the guardian in respect of such a
\nsale  did not affect the rights ascertained and declared  by
\nthe  decree, and, therefore, the leave of court under  Order
\nXXXII, r. 7, of the Code was not necessary.\n<\/p>\n
Before\tleaving\t this part of the case, we  should  make  it
\nclear that it is not our intention to lay down that under no
\ncircumstances an, agreement or compromise entered into by  a
\nguardian to withdraw an application filed for setting  aside
\na sale would be governed by Order XXXII, r. 7, of the  Code.
\nThere may be arrangements or compromises in respect of\tsuch
\na  petition  whereunder the rights declared by\tdecrees\t are
\naffected.  We also assumed for the purpose of this ease that
\nthe  auctionpurchaser was a party to the suit, as there\t was
\nsome controversy on the question whether he was a  benamidar
\nfor the decree-holder.\n<\/p>\n
Lastly\tit  was contended that by reason of s.\t141  of\t the
\nCode, the procedure provided under Order XXXII, r. 7, should
\nbe extended to an agreement or a compromise entered into  by
\na guardian in respect of an application to set aside a\tsale
\nunder  Order XXI, r. 90, of the Code.  The argument is\tthat
\nan  application\t under Order XXI, r. 90, is  an\t independent
\nproceeding,  and as the agreement for withdrawing  the\tsaid
\nproceeding  affects the right created by the sale, it  falls
\nwithin\tthe  meaning of the said rule.\tSection 141  of\t the
\nCode reads :\n<\/p>\n
\t      “The procedure provided in this Code in regard
\n\t      to suits shall be followed, as far as it
\n\t       515<\/span>
\n\t      can be made applicable, in all proceedings  in
\n\t      any Court of civil jurisdiction.\n<\/p><\/blockquote>\n
The  corresponding  is.\t 646 of the Code  of  1882  read  as
\nfollows:\n<\/p>\n
\t      “The  procedure  herein  prescribed  shall  be
\n\t      followed, as far as it can be made applicable,
\n\t      in  all  proceedings  in any  Court  of  civil
\n\t      jurisdiction other than suits and appeals”.\n<\/p><\/blockquote>\n
There  was  a  conflict on the\tquestion  whether  the\tsaid
\nsection applied to proceedings in execution.  To steer clear
\nof  the conflict the following Explanation was added to\t the
\nsection by the Civil Procedure Code Amendment Act 6 of, 1892
\n“Explanation:-This  section does not apply  to\tapplications
\nfor  the  execution  of decrees\t which\tare  proceedings  in
\nsuits”:\t But the section was construed by the Privy  Council
\neven without the said of the Explanation in Thakur Prasad v.
\nSheikh FakirUllah (1), wherein it observed :\n<\/p>\n
\t      “It is not suggested that s. 373 of the  Civil
\n\t      Procedure\t Code  (Order  XXIII, r.  I  of\t the
\n\t      present Code) would of its own force apply  to
\n\t      execution proceedings.  The suggestion is that
\n\t      it  is applied by force of s. 647 (s.  141  of
\n\t      the  present Code).  But the whole of  Chapter
\n\t      XIX  of the Code. consisting of 121  sections,
\n\t      is  devoted to’ the procedure  in\t executions,
\n\t      and  it would be surprising if the framers  of
\n\t      the   Code  had  intended\t to  apply   another
\n\t      procedure,  mostly  unsuitable, by  saying  in
\n\t      general terms that procedure for suits  should
\n\t      be  followed  as\tfar  as\t applicable.   Their
\n\t      Lordships think that the proceedings spoken of
\n\t      in  8.  647 include original  matters  in\t the
\n\t      nature of suits such as
\n\t      (1)   [1894] L.R. 22, 1. A. 44, 49.\n<\/p><\/blockquote>\n
\t      516<\/span><\/p>\n
\t      proceedings in probates, guardianships, and so
\n\t       forth, and do not include executions.”\n<\/p><\/blockquote>\n
 This  view has ever since been followed.  We  have  already
\nheld that the application by the judgmentdebtor to get aside
\nthe  sale is a proceeding in execution’ and,  therefore,  s.
\n141 of the Code will not apply for two reasons, namely,\t (1)
\nas  execution proceedings were continuation of\tsuit  within
\nthe  meaning  of Order XXXII, r. 7 of the Code, and  as\t the
\nCode  provided specifically for suits, s. 141 could  not  be
\ninvoked;  and  2)  as  we have held,  an  application  by  a
\njudgment-debtor\t to  get  aside a sale is  a  proceeding  in
\nexecution  and\ttherefore  s. 141,  which  applies  only  to
\noriginal proceedings, does not apply to such proceedings.
\nIn the result, the appeal fails and is dismissed with  costs
\nof the contesting respondent.\n<\/p>\n
By  COURT.  In accordance with the opinion of  the  majority
\nthe  appeal  is\t dismissed  with  costs\t of  the  contesting
\nrespondents.\n<\/p>\n
\t\t\t    517<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Dokku Bhushayya vs Katragadda Ramakrishnayya on 27 April, 1962 Equivalent citations: 1962 AIR 1886, 1963 SCR (2) 499 Author: A Sarkar Bench: Sarkar, A.K. PETITIONER: DOKKU BHUSHAYYA Vs. RESPONDENT: KATRAGADDA RAMAKRISHNAYYA DATE OF JUDGMENT: 27\/04\/1962 BENCH: SARKAR, A.K. BENCH: SARKAR, A.K. SUBBARAO, K. MUDHOLKAR, J.R. CITATION: 1962 AIR 1886 1963 SCR […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-118818","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nDokku Bhushayya vs Katragadda Ramakrishnayya on 27 April, 1962 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/dokku-bhushayya-vs-katragadda-ramakrishnayya-on-27-april-1962\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Dokku Bhushayya vs Katragadda Ramakrishnayya on 27 April, 1962 - 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