9911796707
TMI Blog1961 (2) TMI 99X X X X Extracts X X X X X X X X Extracts X X X X ..... nted a partition of his share in the family properties, and so in his plaint he claimed appropriate reliefs in that behalf. The several defendants made out pleas in respect of the claims made by Baij Nath, but for the purpose of this appeal it is unnecessary to refer to the said pleas. The suit was instituted on June 11, 1941. 2. It appears that by consent of parties a preliminary decree was drawn by the trial court on October 30, 1941, but the validity of this decree was successfully challenged by an appeal to the Lahore High Court. It was held by the High Court that all parties had not joined in the compromise and so the preliminary decree could not be sustained. In the result the said decree was set aside and the case was remanded for trial. 3. It further appears that after remand parties again came together and by consent requested the court to pass a preliminary decree once again. This was done on October 15, 1943. This preliminary decree specified the shares of the respective parties and left three outstanding issues to be determined by Chuni Lal, defendant 6, who it was agreed should be appointed Commissioner in that behalf. Pursuant to this preliminary decree the Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellants were minors and that leave had not been obtained as required by O. 32, r. 7 Order 32, r. 7(1) provides that 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 the minor with reference to the suit in which he acts as next friend or guardian. It is also not disputed that the agreement which resulted in the drawing up of the preliminary decree and the appointment of Chuni Lal as Commissioner fell within the scope of this rule and that sanction required by the rule had not been recorded in the proceedings. The argument is that the failure to comply with this mandatory provision of the rule makes the agreement and the preliminary decree void, and if that is so s. 97 of the Code of Civil Procedure would be no bar in the way of the appellants challenging the validity of the decree at the appellate stage. 6. The effect of the failure to comply with O. 32, r. 7(1) is specifically provided by O. 32, r. 7(2) which says that any such agreement or compromise entered into without the leave of the court so recorded shall be voidable against all parties other than the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ree did not bind him. It is, however, not necessary for us to deal with this aspect of the matter in the present appeal any further. 8. In support of his argument that the failure to comply with the requirements of O. 32, r. 7(1) makes the decree a nullity Mr. Jha has very strongly relied on the decision of the Privy Council in Chhabba Lal v. Kallu Lal. In that case an objection to the validity of a reference to arbitration was taken by a party in an appeal against the decree passed on an award; and one of the points raised for the decision before the Privy Council was whether an appeal lay against the decree in question. Under Schedule 2, paragraph 16(2) of the Code which was then in force it was provided that upon the judgment pronounced according to the award a decree shall follow and no appeal shall lie from such decree except in so far as it is in excess of or not in accordance with the award. The argument urged against the competence of the appeal was that the objection against the validity of the reference and the award could and should have been raised under paragraph 15(1)(c) of the said Schedule, and since such an objection had not been so raised and a decree was drawn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted to challenge the award. The decision of the Privy Council was that the validity of the award could be challenged by an appeal because it could not have been challenged under paragraph 15(1)(c). Since it could not be challenged under paragraph 15(1)(c), according to the Privy Council paragraph 16(2) could not be invoked against the competence of the appeal. It is unnecessary for us to examine the merits of the said decision in the present appeal. All that we are concerned to point out is that the observation in the judgment on which Mr. Jha relies cannot be treated as a decision on the interpretation of O. 32, r. 7(2). That question did not directly arise before the Privy Council and should not be treated as concluded by the observation in question. As we have already pointed out, the words used in O. 32, r. 7(2) are plain and unambiguous and they do not lend any support to the argument that non-compliance with O. 32, r. 7(1) would make the impugned decree a nullity. 9. Mr. Jha has also relied upon another decision of the Privy Council in Jamna Bai v. Vasanta Rao. In that case two defendants of whom one was a minor compromised a suit pending against them, and in doing so ente ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellants. Section 97, which has been added in the Code of Civil Procedure, 1908, for the first time provides that where any party aggrieved by a preliminary decree passed after the commencement of the Code does not appeal from such decree he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree. 12. It is urged for the appellants that an appeal is a continuation of the suit and so the appellants would be entitled to challenge the impugned preliminary decree as much by an application made in the suit itself as by an appeal preferred against the final decree passed in the said suit. It is true that the proceedings in appeal can be regarded as a continuation of the proceedings in suit; but the decision of the question as to whether the appellants can challenge the said preliminary decree in their appeal against the final decree must in the present case be governed by the provisions of s. 97 of the Code. The whole object of enacting s. 97 was to make it clear that any party feeling aggrieved by a preliminary decree must appeal against that decree; if he fails to appeal against such a decree the correctness of such a decree ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
