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TMI Blog2010 (9) TMI 1256X X X X Extracts X X X X X X X X Extracts X X X X ..... ffs and on the date of institution of the aforesaid suit the plaintiff-Amarchand and defendants No. 1 2 were minor. The suit was instituted fraudulently and on the same day, on the basis of compromise a decree was obtained, however, the plaintiffs did not submit any compromise application in the suit, neither they appeared before the court in the proceedings of Civil Suit No. 393-A/1980. The defendants played a fraud and obtained the decree. The plaintiffs came to know about the decree on 4-8-1985. The defendants in their written statement denied the pleadings of the plaintiffs. They pleaded that a suit was instituted before the civil court on 7-7-1980 and on the same day the plaintiffs appeared before the court and submitted a compromise. On the basis of aforesaid compromise, the trial court passed a decree on the same day i.e on 7-7-1980 and declared that the defendants are the owner of the suit land. Thereafter the name of the defendants had also been mutated in the revenue record. The plaintiffs had knowledge about the judgment and decree. The trial court after appreciation of evidence on record of the case decreed the suit of the plaintiffs-resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay and passed the judgment and decree. The order of the trial dated 7-7-1980 passed in Civil Suit No. 393-A/80 has been filed as Ex.P/I and certified copy of the judgment and decree of the aforesaid suit has been filed as Ex.P/II. The following order was passed by the trial court on 7-7-1980: Today a suit has been filed by Mr. Vishesh Kumar Mishra, Advocate. Reader submitted his report, perused and case be registered as Civil Suit 'A'. At that time defendants along with Shree P.D. Gupta, Advocate appeared. A copy of the Civil Suit was supplied and thereafter the defendants produced the compromise, it was verified and accepted. Statement of the defendants were recorded and as per the compromise suit has been decreed Bhaggu (P.W.1), Hachchu (P.W.2) in their evidence specifically deposed that they did not receive any notice of the suit, neither they appeared before the court, nor they submitted any compromise before the court and at that time Amarchand was minor, who was aged about 5-6 years. This decree was obtained by playing a fraud. They further pleaded that they were in possession of the suit property. On behalf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for minor defendant.-(1) Where the defendant is a minor, the Court, on being satisfied of the fact of his minority, shall appoint a proper person to be guardian for the suit for such minor. Rule 7 of Order XXXII prescribes procedure in regard to agreement or compromise by next friend or guardian for the suit. The relevant provision is as under: Agreement or compromise by next friend or guardian for the suit.- (1) No next friend or guardian for the suit shall, without the leave of the Court, expressly recorded in the proceedings, enter into any agreement or compromise on behalf of a minor with reference to the suit in which he acts as next friend or guardian. [(1-A) An application for leave under Sub-rule (1) shall be accompanied by an affidavit of the next friend or the guardian for the suit, as the case may be, and also, if the minor is represented by a pleader, by the certificate of the pleader, to the effect that the agreement or compromise proposed is, in his opinion, for the benefit of the minor: Provided that the opinion so expressed, whether in the affidavit or in the certificate shall not preclude the Court from ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a nullity and is void and not merely voidable. This principle becomes applicable to the case of a lunatic in view of R.15 of O.32 of the Code of Civil Procedure so that the decree obtained against Ram Lal was a decree which has to be treated as without jurisdiction and void. In these circumstances, the sale held in execution of that decree must also be held to be void. From the judgment of the Hon'ble Supreme Court, it is clear that if a decree is passed against a minor without appointment of guardian, the decree is a nullity and is void and not merely voidable. The Hon'ble Supreme Court in the case of Kaushalya Devi and Ors. v. Baijnath Sayal (deceased) and others, reported in MANU/SC/0028/1961 : AIR 1961 SC 790, has held as under in regard to a decree passed by the court without complying the provisions of Order XXXIII Rule 7(1),: The effect of the failure to comply with Order 32, R. 7(1) (which requires the sanction of the Court to the compromise entered into on behalf of the minor to be recorded) is specifically provided by Order 32 R. 7 (2) which says that any such agreement or compromise entered into without the leave ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t parties thereto. As the appeal has been allowed by the High Court, the same would not be binding upon the appellant and, thus, by reason thereof, the suit in its entirety could not have been disposed of. The court has also a duty to prevent injustice to any of the parties to the litigation. It cannot exercise its jurisdiction to allow the proceedings to be used to work as substantial injustice. A consent decree, as is well known, is merely an agreement between the parties with the seal of the court superadded to it. [See Baldevdas Shivlal v. Filmistan Distributors (India) (P) Ltd. and Parayya allayya Hittalamani v. Parayya Gurulingayya Poojari.] If a compromise is to be held to be binding, as is well known, it must be signed either by the parties or by their counsel or both, failing which Order 23 Rule 3 of the Code of Civil Procedure would not be applicable.(See Gurpreet Singh v. Chatur Bhuj Goel). In Dwaraka Prasad Agarwal v. B.d. Agarwal, this Court held:(SCC pp.243-44, paras 32 and 35) The High Court also failed and/or neglected to take into consideration the fact that the compromise having been enter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... compromise, however, the persons, who were not party to the compromise, can institute a suit. The decree passed in Civil Suit No. 393-A/1980 is a decree against all the four persons including Amarchand. If it is not executable against Amarchand, then the decree is also not executable against the other defendants. Hence, the decree was void and in that circumstances, the suit filed by the plaintiffs-respondents was maintainable. I am conscious the judgments passed by this Court and other High Courts to the effect that in view of the Order 23 Rule 3-A of the Civil Procedure Code, an independent suit is not maintainable to challenge a compromise decree, however, if a person is not a party to the decree and the decree is void, then certainly a suit is maintainable and the bar of Order 23 Rule 3-A would not be applicable in that case. The matter can also be looked into from another angle. The present appellants did not raise a plea that the suit filed by the plaintiffs was not maintainable in view of the provisions of Order 23 Rule 3-A of the Civil Procedure Code, neither any issue was framed by the trial court to this effect. The present appellants contes ..... 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