Dokku Bhushayya Vs. Katragadda
Ramakrishnayya [1962] INSC 171 (27 April 1962)
27/04/1962 SARKAR, A.K.
SARKAR, A.K.
SUBBARAO, K.
MUDHOLKAR, J.R.
CITATION: 1962 AIR 1886 1963 SCR (2) 499
ACT:
Civil Procedure-Decree against
minor-Execution and saleApplication for setting aside sale-Compromise by
guardianLeave of Court not obtained-Whether binding on minor-Code of Civil
Procedure, 1908 (Act V of 1908), s. 14, O. 32, r. 7.
HEADNOTE:
One B obtained a decree for money against the
appellant and his father. The appellant was a minor and was represented by his
maternal grandfather as his guardian. In execution certain properties were sold
and the appellant filed an application for setting aside the sale through his
guardian.
The guardian entered into a compromise with
the decree holder and the auction purchaser under which the application was
withdrawn. Subsequently the sale was confirmed. After attaining majority the
appellant filed a suit for setting aside the order for withdrawal of the
application for setting aside the sale and for a rehearing of that application
on the ground that the guardian bad not obtained the leave of the court as
required by O.32, r : 7 Code of Civil Procedure before entering into the
compromise.
Held, (per Suhba Rao and Mudholkar, jj.,
Sarkar, J. contra) the O.32, r.7 was not applicable to the withdrawal of the
application for setting aside the sale and the order for withdrawal of that
application was binding on the appellant, Order 32, r. 7 is applicable only to
"an agreement or compromise with reference to the suit", and there
are the following limitations to its applicability: (i) it is applicable only
where the rights put in issue in the suit are involved and not to mere
procedural steps; (ii) it is applicable only during the pendency of the suit
which includes execution proceedings; and (iii) the agreement or compromise
must be with a party to the suit. Though the application for setting aside the
sale was an application in execution of the decree, the agreement or compromise
entered into by the guardian with the auction purchaser to withdraw the
application did not affect the rights and liabilities declared by the decree
and therefore leave of the court under O.32, r.7 was not necessary. Section 141
of the Code 500 could not be utilised to, make O.32, r.7 applicable to the
agreement in question. as s. 141 was applicable to original proceedings and not
to proceedings in execution.
Virupakshappa v.Shidappa and basappa. (1901)
I.L.R. 26 Bom.
110, Arunachellam Chetty v. Ramanadhan
Chetty, (1906) I.L.R 29 Mad. 309 Muthalakkammal v. Narappa Reddier, (1933)
I.L.R.
56 Mad. 430, Jitendra Nath Roy v. Samarendra
Nath Mitter (1943) L.R. 70 I.A. 68, Katneni Venkatakrishnayya v. Garapati China
Kanakayya, I.L.R. (1938) Mad. 819 and Thakur Prasad v. Sheikh Fakir Ullah,
(1894) L.R. 22 I.A. 44, referred to.
Per Sarkar, J.-The leave of the court under
O.32, r. 7 was necessary before the guardian could enter into the agree ment or
compromise to withdraw the application for setting aside the sale. There was no
justification for limiting the operation of the rule in its application to
execution proceedings only to compromises which directly affected the rights
and liabilities under the decree; it was applicable to all compromises which
brought a proceeding to an end thereby affecting the rights and liabilities of
the minor, The compromise in the present case was not merely concerned with the
conduct of proceedings but it seriously affected the liability of the appellant
under the decree.
Virupakshappa v. Shidappa, (1901)1.L.R. 26
Bom. 109 Rhodes v. Swithenbank, (1889) L. R. 22 Q. B. D. 577, Gurmallappa v. Mallappa,
(1920) I. L.R. 44 Bom. 574 and Katneni Venkatakrishnayya v. Ganapati China
Kanakayya, (1938) I.L.R.
Mad. 819, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal
483 of 1957.
Appeal from the judgment and decree dated
November 25, 1949, of the Madras High Court in Appeal No. 66 of 1946.
A. V. Viswanatha Sastri and T.V.R. Patachar
for the appellant.
Bhimsenakarama and B K.B. Naidu, for
respondents Nos. 1 and 2.
T. Satyanarayan, for respondents Nos. 7 and
8.
1962. April 27. Sarkar, J., delivered a
separate Judgment.
The Judgment of Subba Rao and Mudholkar, JJ.,
was delivered by Subba Rao, J.
501 SARKAR, J.-In 1929, one Bapiah filed a
suit against the appellant, then a minor, his father and another person on a
promissory Dote executed by the two last mentioned persons, The appellant was
represented in that suit by his maternal grandfather as his guardian ad litem.
'A decree was passed in that suit. The decree holder put the decree in
execution and obtained an order for the sale of certain properties in which the
appellant was interested. The properties were sold in due course in favour, it
is said., of a clerk of the decree holder. Thereafter, the appellant's guardian
ad litem made an application under O. 21 r. 90 of the Code of Civil Procedure
for setting aside the sale. Later, however, the guardian ad litem came to a
settlement with the decree holder and the auction purchaser that the guardian
ad litem would give up the contention regarding the invalidity of the sale and
withdraw the petition to set it aside and also give up possession of the
properties sold to the auction purchaser and decree holder and the auction
purchaser in their turn would give up their claim for costs of the petition. In
pursuance of this agreement the petition was withdrawn and dismissed by order
made on August 12, 1932.
After attaining majority, the appellant filed
a suit in 1944 to set aside the order of August 12, 1932, and for a rehearing
of the petition which was dismissed by the order of that date. It is from this
,suit that the present appeal arises. The suit was decreed by the trial Court
but on appeal the decision of the trial Court was reversed by the High Court at
Madras and the suit was ordered to be dismissed. There is no dispute that the
suit was competent and within time.
The only question in this appeal is whether
the order of August 12, 1932 is voidable under O. 32 r. 7 of the Code of Civil
Procedure, 1908, at the instance of the appellant.
That rule forbids the 502 guardian for the
suit to "enter into any agreement or compromise on behalf of a minor with
reference to the suit" without the leave of the court and provides that
the any such agreement or compromise entered into without the leave of the
court shall be voidable against all parties other than minor.
Order 32, r. 7 of the present Code
corresponds to s. 462 of the Code of 1882. It has been settled since the Code
of 1882 was in force that the provision under the consideration applies to
proceedings in execution though it only mentions agreement or Compromise with
reference to the suit. As long ago as 1901, Jenkins C.J. said in Virupakshappa
v. Shidappa, (1) "I will first deal with the question whether section 462
applies to a compromise of execution proceedings. On the words of the section I
think it does;
applications in execution are proceedings in
the suit, so that a compromise of such a proceeding would be a compromise with
reference to the suit. This view has been followed ever since.
The High Court took the view that a
compromise of an execution proceeding would be within O. 32, r. 7 only when it
affected directly the rights and liabilities created by the decree. It observed
that the compromise in the present case was not affected by the rule as it
concerned only the rights and liabilities under the auction sale and not those
arising under the decree.
I am unable to agree with this view. The High
Court rested itself on the fact that all the reported decisions dealt with
cases in which the agreements had directly affected the rights and liabilities
under the decree. This does not to my mind furnish sufficient justification for
the High Court's view. No decision has been brought to our notice in which it
has been held that O. 32, r. 7 does not apply to a compromise of execution
proceedings (1) (1901) I.R.L. 26 Bom. 109, 114.
503 which does not directly affect the rights
and liabilities created by the decree. It does not seem to me that on principle
the High Court's view can be justified.
It is true that O. 32, r. 7 does not apply to
all agreements. In Bhodes v. Swithenbank (1) it was observed, "This is an
action by an infant by means of her next friend, who undoubtedly has the
conduct of the action in his hands.
If, however, the next friend does anything in
the action beyond the mere conduct of it, whatever is so done must be for the
benefit of the infant, and if, in the opinion of the Court it is not so, the
infant is not bound". It may therefore be said that an agreement
concerning the conduct of the proceeding does not require the sanction of the
Court.
Beyond this, I find no justification for
limiting the operation of the rule. I observe that Jenkins C.J. in what I have
earlier read from his judgment, said that the rule "applies to a
compromise of execution proceedings".
Therefore, it seems to me that according to
the learned Chief Justice it applies to all compromises of execution
proceedings, excepting, of course, compromises concerning the conduct of them,
and this whether the compromise directly affects the rights or liabilities
under the decree or not. I think the principle of the rule was correctly stated
by Heaton J. when dealing with s. 462 of the Code of 1882 he observed in
Gurmallapa v. Mallappa (2), "That section, I think, necessarily implies
that during the continuance of proceedings in Court, the dispute between the
minor and another party which the Court had to decide could not be compromised
except by the guardian ad litem of the minor, and by him only with the leave of
the Court." I think that any compromise of a proceeding which concerns the
dispute involved in it (1) (1889) L.R. 22. Q.B.D. 577,578.
(2) (1920)I.L.R.44 Bom.574,581.
504 would require the sanction of the Court.
I should also point out that sub-r. (6) of r. 3 of O. 32 provides that a person
appointed guardian for the suit for a minor shall unless his appointment is
terminated, continue as such throughout all the proceedings arising out of the
suit including the proceedings in execution of a decree.
The object behind O. 32 seems to me to be
that when an infant is involved in a legal proceeding, he should have a
guardian assigned to him and that guardian should be under the control of the
Court before which the proceeding is pending so as not to be able to affect the
rights and liabilities of the infant, the subject matter of the proceeding, by
a compromise which the Court has not approved as one for the benefit of the
infant. If this is the principle, as I think it is, there would be no
justification for limiting the operation of the rule in its application to
execution proceedings, only to compromises which directly affect the rights and
liabilities under the decree. The rule, in my view, would apply, among others,
to compromises which bring a proceeding to an end and thereby affect the rights
or liabilities of the infant involved in it. I think this view receives support
from the observations of Varadachariar J. in Katneni Venkatakrishnayya v.
Ganapati China Kanakayya(1) that, "Rule 7 deals with the conduct of a next
friend' as such who, as pointed out in Bhodes v. Swithenbank(2) is an officer
of the Court to conduct the suit; and the principle underlying are 7 is that
whenever he proposes to do anything beyond the normal conduct of the suit, he
has to obtain the leave of the Court to do so.", Quite obviously the word
"suit" in this observation would include a proceeding in execution.
It is of some interest to point out that the
learned Judges of the High Court were careful to (1) (1938) I.I.R. Mad.
819,828.
(2) (1889) L.R. 22 Q.B.D. 577,578 505 use the
word "directly"; they said the agreement or compromise in the present
case did "not directly deal with or regulate the extent and nature of the
rights and liabilities under the decree, which stand intact and unaffected as
before." This seems to me to indicate that the learned Judges were
conscious that the compromise in this case affected the rights and liabilities
of the appellant under the decree at least indirectly. It seems to me that if
the rule prohibits an agreement which directly affects the rights and
liabilities of an infant under a decree, there would be no reason to think that
it would not similarly prohibit an agreement deliberately made to affect the
same rights and liabilities indirectly. The agreement challenged in this' case,
is, as I shall endeavour to show, of this kind.
Turning now to the facts of this case I think
the proceeding in which the compromise was arrived at was in the course of
execution of the decree. It was a proceeding to challenge the validity of an
execution sale. It was therefore a proceeding, a compromise in reference to
which would be governed by O. 32, r. 7 under the rule laid down in
Virupakshappa's case(1).
It also seems to me clear that the compromise
was not concerning the conduct of the proceeding. It brought the proceeding to
an end and its result was that the appellant's right to question the validity
of the sale was lost. He because bound by the sale, good or bad. His liability
under the decree was reduced only by the amount of the proceeds of the sale,
however inadequate a price might have been fetched in it., It may be that if
the proceeding to set aside the sale had been continued and not abandoned, the
sale might have been set aside and a fresh sale, if one took place, might have
fetched a larger prim and thereby diminished the liability (1) (1901) I.L.R 26
am. 109. ;I.
506 under the decree to a greater extent.
Such a compromise cannot be said to be one relating to the conduct of the
proceeding. It seems to me also to be one affecting seriously the liability of
the appellant under the decree since it deprived him of his right to have that
liability reduced by a larger amount by a sale properly held. It is a
compromise which from all points of view, should have been made with the
sanction of the Court.
Before concluding I think it right to say
that the decree holder and auction purchaser can derive no assistance from
Jitendra Nath Rao v. Samarandra Nath Mitter(1). In that case the Judicial
Committee held that the agreement contemplated by O. 32, r. 7 is one which is
made with a party to the suit or proceeding. Here the agreement was in the
execution proceeding and it was made with the decree holder and the auction
purchaser both of whom were parties to it, the former having been a party to
the suit itself out of which the execution proceeding arose.
I think this appeal should be allowed.
J.SUBBA 'RAO, J. This appeal raises the
question of the construction of the provisions of Order XXXII, r. 7 of the Code
of Civil Procedure.
Bhushayya, the appellant, and respondents 7
and 8 herein are the sons of one Dokka Adeyya (since died). On the basis of a
promissory note executed by Dokku Adeyya and respondent 5 in favour of one
Bapayya, the latter filed C.S. No. 88 of 1929 in the Court of the Subordinate
Judge, Bapatla, and obtained a decree therein. In that suit, the appellant, who
was then a minor, was a defendent and was represented by his maternal grandfather'
as his guardian. In execution of the said decree, properties of Dokku Adeyya
were brought (1) (1943) L.R. 70 I.A. 68.
507 to sale and were purchased by the
decree-holder's clerk, Bapiraju, subject to the mortgage in favour of the
decreeholder. Before the sale was confirmed, on March 29, 1932, the appellant,
represented by his maternal grandfather, filed E.A. No. 136 of 1932 to set
aside the sale under Order XXI, r. 90 of the Code of Civil Procedure. The said
petition was posted for inquiry to August 12, 1932. On that day, a memorandum
was filed in the court by the guardian of the appellant to the effect that the
matter was adjusted and that the petition should be dismissed as having been
withdrawn. No sanction of the court was obtained by the guardian for
withdrawing the petition. On the said day, the court passed an order dismissing
the application.
Subsequently, the sale was confirmed. On
October 9, 1944, the appellant, who bad then attained majority, filed a suit,
O.S. No. 80 of 1944, on the file of the Subordinate Judge, Tenali, for setting
aside the order dated August 12, 1932 and to try the application for setting
aside the sale on market. It was, inter alia pleaded that the said order was
void in as much as the guardian of the appellant withdrew the application
without the sanction of the court as he should do under Order XXXII, r. 7 of
the Code of Civil Procedure, hereinafter referred to as the Code. The
contesting defendants, some of them being the subsequent aliences, filed
written statements seeking to sustain the validity of the said order. For the
purpose of this appeal we need not notice any other point. The learned
Subordinate Judge held that the withdrawal of the said petition and the
consequent dismissal thereof was void, as the guardian did not obtain the
sanction of the Court under Order XXXII, r. 7 of the Code. On appeal, the High
Court came to the conclusion that Order XXXII, r. 7 of the Code had not
relevance to an application for setting aside the sale in the circumstances of the
cam. Hence the appear.
508 The only question that arises in this
appeal is whether the withdrawal of the said petition by the guardian was in
contravention of Order XXXII, r. 7 of the Code. Before construing the
provisions of the said Order, it would be convenient to notice what exactly
were the terms of the agreement. The High Court in its judgment summarised the
factual position on that date thus:
"The agreement is that the
guardian-adlitem should give up the contentions regarding the invalidity of the
auction sale and should withdraw the petition to set aside the sale and also
deliver up possession of the properties purchased, to the auction-purchaser and
that the decree-holder and auction-purchaser should give up their claim for
costs o f the said petition. It was in pursuant of this agreement that the
petition was withdrawn and dismissed (no costs being given)".
This is the correct petition, and we need not
elaborate further on it. Order XXXII, r. 7, clauses (1) and (2) read as follow:
Clause (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.
Clause (2). "Any such agreement or
compromise entered into without the leave of the Court so recorded shall be
voidable against all parties other than the minor." In Madras, there is
also another clause, viz., cl. (1-A) introduced by an amendment made in 1910
and it reads" Where an application is made to the Court for leave to enter
into an agreement or 509 compromise or for withdrawal of a suit in pursuance of
a compromise or for taking any other action on behalf of a minor or other
person under disability and such minor or other person under disability is
represented by counsel or pleader, the counsel or pleader shall file in Court
with the application a certificate to the effect that the agreement or
compromise or action proposed is in his opinion for the benefit of the minor or
other person under disability. A decree of other for the compromise of a suit,
appeal or matter to which a minor or other person under disability is a party
shall recite the sanction of the Court thereto and 'shall set out the terms of
the compromise as in Form No. 24 in Appendix to this schedule." Under this
Order, no guardian shall enter into an agreement or compromise on behalf of a
minor with reference to a suit in which he acts as next friend or guardian. The
short question is, what is the meaning to be given to the words "an
agreement or compromise with reference to the suit" ? Mr. Viswanath
Sastri, learned counsel for the appellant, raised two contentions, namely : (1)
That the execution proceedings are proceedings with reference to the suit and
therefore any compromise or agreement entered into or effected by a guardian of
a minor in execution proceedings affecting his rights procedural or
substantive, whether in issue in the suit or declared by the decree or not
would require the sanction of the court and an agreement entered into without
that sanction would be void. (2) An application to set aside a sale is a
proceeding with. in the meaning of s. 141 of the Code' and, therefore, O.
XXXII, r. 7, as far as it can be made applicable, would apply to such
proceeding; as the compromise was entered into by the guardian in such a
proceed without the leave of the Court, the said com510 promise as well as the
order made pursuant thereto was void.
On the other hand, Mr. Bhimasankaram, learned
counsel for the respondents, while supporting the test laid down by the High
Court, namely, that an agreement to fall within the mischief of the said Order
shall be such as deals directly with the rights and liabilities involved in the
suit or defined by the decree, attempted to abridge the scope of the test
further by trying to make a distinction between an agreement relating to rights
conferred by the decree and that only relating to liabilities imposed there
under.
Order XXXII, r. 7, is one of the provisions
designed to safeguard the interests of a minor during the pendency of a suit
against hostile, negligent or collusive acts of a guardian. The scope of the
provisions is implicit in the phraseology used therein. The crucial words are
"any agreement or compromise ... with reference to the suit".
The words "with reference", if
taken out of the context, are of the widest import. They may take in' every
procedural step in the conduct of a suit, such as adjournment, admission of
documents, inter locutories, inspection etc.,, and obviously it could not have
been the intention of the Legislature that agreements in respect of such
procedural steps should conform to the requirements of the rule. If that be not
so, the rule instead of protecting the interests of a minor would easily become
a major obstacle in disposing of suits in which a minor is ranged as party on
one side or the other. So consistent with the purpose of the rule the words
"'with reference to the suit" must be limited to the rights put in
issue in the suit.
The next limitation is that the. protection
is only during the pendency of the suit. When does a Suit come to an end It has
been held that for the 511 purpose of the said rule an execution proceeding is
a continuation of a suit: see Virupakshappa v. Shidappa and Basappa(1),
Arunachellam Chetty v. Ramanadhan Chetty(2), and Muthalakkammal Chetty v.
Narappa Reddiar(3). If it was a continuation, the rule would also apply to an
agreement or compromise with reference to the said execution proceeding.
But, just like in the case of a suit, in the
case of execution proceedings also, the agreement or compromise shall be one
affecting rights or liabilities ascertained or declared by the decree put in
execution. As in the case of a suit, so also in the case of an execution of a
decree, mere procedural steps not affecting the rights or liabilities so
declared are not governed by the provision. The guardian may agree to an
adjournment of a sale, to a waiver of a fresh proclamation, to a reduction of
upset price etc. It could not have been the intention of the Legislature that
every time such a step is taken, the procedure laid down in Order XXXIII, r. 7,
of the Code should be complied with.
The next limitation is that the agreement or
compromise shall be entered into with a party to a suit or his legal
representative. The rule does not provide for dealings of a guardian with
persons not parties to a suit. The question directly arose in a case which went
up to the Privy Council, viz., in Jitendra Nath Roy v. Samarandra Nath
Mitter(4).
There, a decree obtained in favour of a
minor, represented by his guardian, was assigned by the guardian for
consideration to another without obtained the leave of the court. Advertising
to the question of validity of such an assignment, Lord Atkin observed
"They (the Judges of the High Court) took the view that, in the rule in
the phrase, "agreement or compromise... with reference (1) (1901) I.L.R.
26 Bom. 110.(2) (1906) I.L.R. 29 Mad.
(3) (1939) I.L.R. 56 Mad. 430.(4) (1949) L.R.
70 I.A. 68.
512 to the suit" the words mean
agreement with a party to the suit and do not cover a transfer of a decree to
someone then unconnected with the suit, even assuming that such transfer could
properly be described as an agreement.
They expressed their agreement on this point
with a decision of the Full Bench of the Madras High Court in Katneni
Venkatakrishnayya Garapati China Kanakayya(1), which is precisely in point. It
appears to their Lordships that it cannot have been intended to require the
leave of the court to an agreement, for example, made with a non-party.to
finance a suit, whether with a stipulation to receive part of the proceeds or
not. The Conjunction of the word "agreement" with the word "compromise"
appears to indicate the kind of agreement intended." We agree with these
observations. The result is that Order XXXII, r. 7, of the Code will apply to
only to an agreement or compromise entered into by a guardian of a party to the
suit, who is a minor with another party thereof during the pendency of the suit
and the execution proceedings.
The next question is whether the application
for setting aside a sale is a proceeding in execution of a decree.
Order XXI of the Code prescribes, among
others, the different modes of execution, one of them being execution against
the property of a judgraent-debtor. The Order also prescribes a procedure for
sale of the said property and for setting aside a sale obtained by fraud or
material irregularity. Under Order XXI, r. 92, where no application is made
under r. 89, r. 90, or r. 91 to set aside a sale or where the application is
made and disallowed, the Court shall make an order confirming the sale, and
thereupon the sale shall become abso(1) I.L.R. 1938 Mad. 814.
513 lute; under sub-r. (3) of r. 92 of the
said Order, "No suit to set aside an order made under this rule shall be
brought by any person against whom such order made." It is, therefore,
clear that Order XXI provides a self-contained machinery for executing a decree
and for deciding disputes that may arise in connection with the execution. The
execution is not closed till the decree is discharged or barred by limitation.
In this view, we must hold that an application filed by a judgment-debtor to
set aside a sale is an application in execution of a decree.
Even so, as we have already indicated, to
attract Order XXXII, r. 7, of the Code the agreement or compromise entered into
between the guardian and the auction-purchaser shall be an agreement or a
compromise affecting the rights or liabilities declared by the decree. Can it
be said that in the present case the agreement affected any such right or
liability ? The suit was on the basis of a promissory note executed by the
father and the brother of the appellant.
The appellant was also a party to the suit.
The decree was for recovery of the amount covered by the promissory note with
interest. It did not in any way affect the title of the appellant to the entire
or to any part of the property of the family sold in execution of the decree.
The appellant, by his guardian, filed an application to set aside the sale on
the ground of fraud and material irregularity in the conduct of the sale. The
guardian agreed to withdraw the said application on certain conditions. The agreement
also did not in any way affect the rights or liabilities declared under the
decree. Not with stand. ing the agreement, the decree was left intact.
It is said that if the sale was set aside,
the decree would have to be executed afresh, but as it was not aside on the
basis of the said agreement, the sale price in discharge of the decree;
therefore, the argu. ment proceeds, the agreement affected the discharge 514 of
the decree. The father of appellant could have sold the family property out of
court and could have out of the sale proceeds, discharged the decree. In that
event it could not be said that the sale affected the rights or liabilities
decree. If so, the sale of property through court cannot equally affect any
such rights or liabilities declared by the decree. We? therefore, hold that the
agreement or compromise entered into by the guardian in respect of such a sale
did not affect the rights ascertained and declared by the decree, and,
therefore, the leave of court under Order XXXII, r. 7, of the Code was not
necessary.
Before leaving this part of the case, we
should make it clear that it is not our intention to lay down that under no
circumstances an, agreement or compromise entered into by a guardian to
withdraw an application filed for setting aside a sale would be governed by
Order XXXII, r. 7, of the Code.
There may be arrangements or compromises in
respect of such a petition where under the rights declared by decrees are
affected. We also assumed for the purpose of this ease that the auction purchaser
was a party to the suit, as there was some controversy on the question whether
he was a benamidar for the decree-holder.
Lastly it was contended that by reason of s.
141 of the Code, the procedure provided under Order XXXII, r. 7, should be
extended to an agreement or a compromise entered into by a guardian in respect
of an application to set aside a sale under Order XXI, r. 90, of the Code. The
argument is that an application under Order XXI, r. 90, is an independent
proceeding, and as the agreement for withdrawing the said proceeding affects
the right created by the sale, it falls within the meaning of the said rule.
Section 141 of the Code reads :
"The procedure provided in this Code in
regard to suits shall be followed, as far as it 515 can be made applicable, in
all proceedings in any Court of civil jurisdiction.
The corresponding is. 646 of the Code of 1882
read as follows:
"The procedure herein prescribed shall
be followed, as far as it can be made applicable, in all proceedings in any
Court of civil jurisdiction other than suits and appeals".
There was a conflict on the question whether
the said section applied to proceedings in execution. To steer clear of the
conflict the following Explanation was added to the section by the Civil
Procedure Code Amendment Act 6 of, 1892 "Explanation:-This section does
not apply to applications for the execution of decrees which are proceedings in
suits": But the section was construed by the Privy Council even without
the said of the Explanation in Thakur Prasad v. Sheikh FakirUllah (1), wherein
it observed :
"It is not suggested that s. 373 of the
Civil Procedure Code (Order XXIII, r. I of the present Code) would of its own
force apply to execution proceedings. The suggestion is that it is applied by
force of s. 647 (s. 141 of the present Code). But the whole of Chapter XIX of
the Code. consisting of 121 sections, is devoted to' the procedure in
executions, and it would be surprising if the framers of the Code had intended
to apply another procedure, mostly unsuitable, by saying in general terms that
procedure for suits should be followed as far as applicable. Their Lordships
think that the proceedings spoken of in 8. 647 include original matters in the
nature of suits such as (1) [1894] L.R. 22, 1. A. 44, 49.
516 proceedings in probates, guardianships,
and so forth, and do not include executions." This view has ever since
been followed. We have already held that the application by the judgment debtor
to get aside the sale is a proceeding in execution' and, therefore, s. 141 of
the Code will not apply for two reasons, namely, (1) as execution proceedings
were continuation of suit within the meaning of Order XXXII, r. 7 of the Code,
and as the Code provided specifically for suits, s. 141 could not be invoked;
and 2) as we have held, an application by a judgment-debtor to get aside a sale
is a proceeding in execution and therefore s. 141, which applies only to
original proceedings, does not apply to such proceedings.
In the result, the appeal fails and is
dismissed with costs of the contesting respondent.
By COURT. In accordance with the opinion of
the majority the appeal is dismissed with costs of the contesting respondents.
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