1961 (2) TMI 99 - SC - Indian Laws

Summary

Issues Involved:

1. Validity of Preliminary Decree
2. Compliance with O. 32, r. 7 of the Code of Civil Procedure
3. Interpretation of O. 32, r. 7(2)
4. Applicability of Section 97 of the Code of Civil Procedure

Detailed Analysis:

1. Validity of Preliminary Decree:
The appeal arises from a partition suit filed by Baij Nath against his coparceners. A preliminary decree was initially drawn by consent on October 30, 1941, but was set aside by the Lahore High Court due to non-unanimous compromise among parties. A second preliminary decree was passed by consent on October 15, 1943. The trial court considered objections and drew a final decree on June 21, 1944. The appellants challenged the preliminary decree's validity, arguing non-compliance with mandatory provisions of O. 32, r. 7 of the Code of Civil Procedure.

2. Compliance with O. 32, r. 7 of the Code of Civil Procedure:
The appellants contended that the preliminary decree was invalid as the court failed to comply with O. 32, r. 7, which mandates court leave for agreements involving minors. The appellants were minors at the time, and their guardian had not obtained the required leave. The argument was that this non-compliance rendered the decree void, allowing them to challenge its validity at the appellate stage.

3. Interpretation of O. 32, r. 7(2):
The court clarified that non-compliance with O. 32, r. 7(1) does not make the decree void but voidable at the minor's instance. The provision is designed to protect minors, allowing them to avoid the agreement and its consequences. The court emphasized that the decree's voidable nature does not affect its jurisdiction but allows minors to seek its avoidance. The court rejected the argument that the decree was a nullity, citing that the rule's plain meaning supports its voidable nature only for the minor.

4. Applicability of Section 97 of the Code of Civil Procedure:
Section 97 precludes any party aggrieved by a preliminary decree from disputing its correctness in an appeal against the final decree if no appeal was made against the preliminary decree. The court held that this section aims to ensure that preliminary decrees are treated as correct and binding if not appealed. The appellants' failure to appeal against the preliminary decree barred them from challenging its validity in their appeal against the final decree. The court affirmed that Section 97's purpose would be undermined if legal validity could be challenged without appealing the preliminary decree.

Conclusion:
The appeal was dismissed with costs, upholding the High Court's decision that the appellants could not challenge the preliminary decree's validity in their appeal against the final decree due to their failure to appeal the preliminary decree under Section 97 of the Code of Civil Procedure.