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Report No. 27

Order XXXII, rule 6

Under the amendment to Order XXXII, rule 6, made by the Madras High Court, the Court has power to dispense with security in cases where the next friend, etc., is the manager of a joint Hindu family and the decree is in the favour of the family. Under the amendment made by the High Court of Kerala, a similar power is given where the next friend, etc., happens to be the parent of the minor. These amendments appear to contain useful provisions, which are proposed to be embodied with small modifications.

Order XXXII, rule 7

A provision has been proposed to the effect that where an application for the leave of the Court to a compromise, etc., is made on behalf of a minor, certificate of the counsel as well as an affidavit of the next friend or guardian for the suit should be required to the effect that the compromise, etc., is for the benefit of the minor. Compare the Madras Amendment, Order XXXII, rule 7 (1A), under which such a certificate is required in respect of an application for leave to enter into an agreement or compromise or withdrawal of a suit in pursuance of a compromise or for taking any other action on behalf of a minor or another person under disability. The proposed amendment has suggested itself on a study of the Madras Amendment, though it requires an affidavit of the next friend, etc., himself also. The Madras Amendment applies to "any other action", but it is considered unnecessary to go to that length1.

1. See also Order XXIII, rule 1, as proposed to be amended.

Order XXXII, rule 15

The Madras Amendment to Order XXXII, rule 15 excludes the operation of rule 2A (security demanded from next friend or guardian) in relation to persons of unsound mind etc. It is, however, considered unnecessary, to have any such provision.

The question whether supervening insanity should be dealt with has been considered. At present rule 2 does not apply in such cases.1

From the discussion in Annual Practice under Order XVI, rule 17 and Order XVII, rule 4, it would appear that in England the action must be carried on by the next friend (who will usually be the receiver in lunacy).

As such cases are not frequent, no amendment is suggested.

1. Firm Deokaran Das v. Debi Sahai, AIR 1936 Lah 7 (8) (Backet J.)

Order XXXII, rule 16

This amendment is intended to bring the rule in line with the substantive provisions contained in sections 83 to 87B of the Code of Civil Procedure.

Compare the amendment made by the High Court of Andhra Pradesh.

It is considered unnecessary to add any explanation defining expressions like "Ruler"' etc., as these have been already defined in sections 83 to 87B.

Order XXXIII and "pauper"

A recommendation has been made in the Fourteenth Report1 to replace the word "pauper" by "poor person". Since, however, the expression "pauper" has come to acquire a special meaning in legal parlance and has become familiar, it is considered unnecessary to disturb it. It is used in English statutes also2.

1. 14th Report, Vol. I.

2. Appeal (forma pauperis) Act, 1892, 1893 (56 & 57 Vic. C. 22).

Code of Civil Procedure, 1908 Back

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