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Case Number
Judges
  • Rowland
  • Chatterji, JJ.
Acts
  • O. 32, R. 7, sub-rule 2
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Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • Rowland
  • Chatterji, JJ.
Acts
  • O. 32, R. 7, sub-rule 2
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Smart Summary

Judgment Summary — Chatterji, J. (Execution Proceeding; Appeal by Minor Judgment-Debtors)

Factual and Procedural Background

This appeal arises from an execution proceeding brought against Umar Mia and Bibi Asma, two judgment-debtors who are minors. In the original suit for dissolution of partnership and accounts the minors were defendants 2 and 3. In the plaint their mother, Mt. Sahebzadi, was shown as their guardian but she did not appear in the suit. At an early stage their step-brother, Muhammad Sadiq (also a defendant), appeared for himself and purportedly as guardian of the minors.

A preliminary decree showed the mother as guardian. Later the parties applied for a reference to arbitration; Muhammad Sadiq signed the reference application for himself and as guardian of the minors and also made a separate application for permission to refer the matter to arbitration. Leave was granted and the matter was referred to arbitration; an award followed and a final decree was entered against the minors and other defendants. Muhammad Sadiq, for himself and as guardian of the minors, obtained a revision in the High Court which reduced their liability to some extent.

The decree-holder initiated execution. The minors resisted execution on the ground that the final decree was not binding on them because the reference to arbitration was invalid — their mother, who was the guardian shown in the plaint, had not joined in the reference. The Subordinate Judge overruled that objection and ordered execution to proceed. The present appeal is by the minors against that order.

Legal Issues Presented

  1. Whether a reference to arbitration signed by a person who acted as guardian though without a formal court appointment (Muhammad Sadiq) was valid as against minors who were nominally shown to have a different guardian (their mother) in the plaint.
  2. Whether a decree based on an award procured by a guardian without the leave of the Court under Order 32, Rule 7 of the CPC is void or merely voidable as against a minor.
  3. Whether an objection to the validity of such a decree may be entertained in execution proceedings (i.e., whether the executing court may go behind a decree to determine its validity) or whether such matters must be challenged in a separate suit or appropriate remedy.

Arguments of the Parties

Appellants' Arguments (as presented by Mr. De)

  • Under Order 32, Rules 5 and 7 of the CPC the application for reference to arbitration could only be made by the guardian for the suit after obtaining leave of the Court; Muhammad Sadiq was not the guardian in fact and therefore could not validly present the reference.
  • Because Muhammad Sadiq was not the guardian, the reference to arbitration (and therefore the award and the resulting decree) was invalid; Mr. De relied on earlier decisions (including a decision reported as 18 Pat 2711) which, he submitted, held that a decree based on an unsanctioned reference was not binding on a minor.
  • The word “void” appears in some earlier reported observations (for example in AIR 1931 Bom 500 and other cases), and that usage was pressed to support the contention that the decree was a nullity and therefore not executable against the minors.

Court's Response and Position

  • The court observed that Order 32, Rule 7, sub-rule 2 indicates that an agreement or compromise entered into by a guardian without leave of the Court is "voidable" against all parties other than a minor; the court interpreted this to mean that a decree based on such an agreement or compromise is not ipso facto void but only voidable at the instance of the minor.
  • The court distinguished cases where a decree is a nullity because the court lacked jurisdiction (territorial, pecuniary, subject-matter, or over the person) from cases where a decree is passed in disregard of procedural provisions — the former are void, the latter voidable and require appropriate proceedings to be set aside.
  • The record indicated Muhammad Sadiq appeared early and acted as guardian for the minors (signed the reference and sought leave which was granted). Even if there was no formal order appointing him guardian, the question of whether the minors were effectively represented and whether they suffered prejudice are matters that cannot be inquired into in an execution proceeding.
  • Consequently, the executing court was correct to refuse to go behind the decree on the ground asserted, and the appeal was dismissed with costs.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
18 Pat 2711 Decision dealing with a suit by a minor to set aside a decree based on an award obtained by a guardian without requisite sanction under O.32, R.7; held the decree based on the award was not binding on the minor. Court noted that while that decision held the decree not binding on the minor, it did not resolve whether the decree was void or only voidable; used to show that minors may challenge such decrees but not to establish execution-stage nullity.
AIR 1931 Bom 500 Bombay High Court observed that an award and decree based on an unsanctioned reference were "void" (observation in that case). Court treated that observation as not authoritative in the face of the plain language of O.32, R.7, sub-rule 2 and distinguished it because that case involved a suit to set aside a decree rather than an execution proceeding.
4 Pat LJ 240 Full Bench decision where a decree passed against a dead man was held to be a nullity and therefore inexecutable against his legal representatives; distinction drawn between void and voidable decrees. Court relied on the principle from this Full Bench decision to explain that a decree is void where the court had no jurisdiction; contrasted that with cases where the court had jurisdiction but contravened procedural rules (which yield voidable decrees).
2 Pat 335 Referenced in connection with the principle distinguishing nullity for lack of jurisdiction from other irregularities. Cited as supportive authority for the court's distinction between inherent lack of jurisdiction (void) and procedural irregularity (voidable).
12 Pat 1175 Decision pointing out the distinction between inherent lack of jurisdiction and lack of jurisdiction on grounds for determination by the Court; held that where minors were properly represented but there was no formal order appointing their guardian, this was a mere irregularity not vitiating the decree. Applied to conclude that absence of a formal appointment of the guardian in the record is an irregularity and does not render the decree a nullity when minors were effectively represented.
32 Cal 2966 Privy Council decision relied on by the appellants; held that the Court had no jurisdiction to sell the property of persons who were not parties to the proceedings or properly represented on the record. Court distinguished that authority: there the question was raised in a suit (and involved persons not represented), whereas here the obstacle was raised in execution where minors had been effectively represented; thus the authorities are not directly applicable.
30 Cal 10217 Judicial Committee decision holding that where a guardian for a minor defendant appeared and effectively represented him, although no formal order of appointment was made, the decree could not be said to be invalid against the minor unless prejudice was shown. Used to support the proposition that effective representation by a guardian (even absent formal appointment) prevents the decree from being held invalid at the execution stage unless prejudice is demonstrated, which cannot be investigated in execution.
AIR 1934 Cal 8458 Referenced by the court to note that the mere occurrence of the word "void" in earlier observations does not make those observations authoritative for issues not decided in those cases. Relied upon to reject an argument that earlier uses of the word "void" automatically support the appellants' position; the court treated such usages as non-decisive where the prior cases did not consider the specific execution-stage question.
32 Cal 296 Referenced alongside other authorities involving estates and representation issues (appears in the court's discussion of prior case law). Distinguished on the basis that those cases affected estates or unrepresented parties and were not squarely in point for the execution-stage objection raised here.

Court's Reasoning and Analysis

The court's analysis proceeded in a series of linked legal propositions, grounded in the text of the CPC and established distinctions in jurisdictional and procedural law:

  1. Statutory interpretation: The court examined Order 32, Rule 7, sub-rule 2 which the opinion quotes as providing that an agreement or compromise entered into by a guardian without the leave of the Court "shall be voidable against all parties other than a minor." The court interpreted that language to mean that such agreements (and decrees founded on them) are not automatically void but are voidable at the instance of the minor.
  2. Void versus voidable: The court emphasized the well-settled distinction: a decree is void when the court that made it had no jurisdiction (territorial, pecuniary, subject-matter or over the person); a voidable decree, by contrast, is valid and binding until set aside by competent tribunal. The executing court cannot ordinarily go behind a decree to re-examine matters that render it merely voidable.
  3. Precedential support and limits: The court examined the authorities relied on by the appellants and distinguished them. Some earlier cases where the word "void" appears concerned suits brought by minors to set aside decrees (not execution proceedings), or involved estates of deceased persons who were not represented; such contexts differ materially from the present execution-stage objection. Thus, the court treated observations of "void" in those decisions as not determinative of the present issue.
  4. Effective representation: On the factual record the court found Muhammad Sadiq appeared early, acted as guardian for the minors, signed the arbitration reference as guardian and sought leave of Court (which was granted). Even if no formal order appointing him existed on the record, prior authorities (the Judicial Committee decision cited) establish that effective representation of a minor by an appearing guardian, without formal appointment, does not render the decree invalid unless prejudice is shown.
  5. Limit of execution proceedings: Whether the minors were effectively represented and whether they suffered prejudice from the procedure were matters that could not be investigated in the execution proceeding itself. Because the objection sought to collaterally impeach what was, at least on its face, a decree passed following leave to refer and subsequent proceedings, the executing court properly refused to set execution aside on that ground.

Holding and Implications

HOLDING: The appeal is DISMISSED. The Subordinate Judge correctly overruled the minors' objection to execution, and the appellant-minors' challenge to the decree could not be sustained in the execution proceeding. The primary judge (Chatterji, J.) explicitly states he would dismiss the appeal with costs; Rowland, J. agreed.

Implications

  • Direct effect: The order refusing to stay or stop execution was affirmed; execution was permitted to proceed against the minors in accordance with the decree.
  • On remedies and process: The decision reinforces the principle that objections which render a decree merely voidable (for example, procedural contraventions under O.32, R.7) must be pursued by appropriate proceedings (e.g., suit/revision/setting aside) and are not generally susceptible to collateral attack in execution.
  • No new legal principle or expansive precedent was established: the court applied existing distinctions between void and voidable decrees and relied on prior authorities to resolve the execution-stage question. The opinion does not purport to lay down a novel rule beyond these principles.

Disposition recorded in the opinion: "Appeal dismissed." (Chatterji, J.; Rowland, J. concurring.)

Show full summary ...

    Umar And Others v. Mahabir Lal Sahu And Others

    Chatterji, J.:— This appeal which arises out of an execution proceeding is by Umar Mia and Bibi Asma, two of the judgment-debtors who are minors. In the original suit which was for dissolution of partnership and accounts, they were defendants 2 and 3 and in the plaint they were represented by their mother Mt. Sahebzadi who was herself a defendant as their guardian. It appears that Mt. Sahebzadi did not appear in the suit at all but at the very earliest stage the minors' step-brother Muhammad Sadiq, who was also a defendant, appeared on his own behalf and also as guardian of the minors. However, in the preliminary decree that was passed against them, the minors were shown to be under the guardianship of their mother. In the course of subsequent proceedings in the suit, there was an application by the parties concerned for reference to arbitration. In that application Muhammad Sadiq signed for himself and as guardian of the minors. He also made a separate application for permission to refer the matter to arbitration. Permission was accorded and the matter was referred to arbitration. In due course an award was submitted and on the basis of the award, a final decree was passed against the minors and other defendants in the suit. Against that decree Muhammad Sadiq for self and as guardian of the minors presented an application for revision to the High Court with the result that their liability was reduced to some extent. Subsequently the decree-holder took out execution which was resisted by the minors on the ground that the final decree was not binding against them inasmuch as the reference to arbitration was invalid because their mother who was their guardian did not join in the reference. This objection was overruled by the Subordinate Judge and he ordered the execution to proceed. Against this order the present appeal has been preferred by, the minors.

    2. The contention raised by Mr. De on behalf of the appellants is that under the provisions of O. 32, Rr. 5 and 7 of the CPC, the application for reference to arbitration could be made only by the guardian for the, suit after obtaining the necessary leave of the Court and as Muhammad Sadiq who made applications for the purpose was not the guardian, there was no valid reference I and therefore the award and the decree were wholly Void. O. 32, R. 7, sub-rule 2 however provides that any agreement or compromise entered into by the guardian without the leave of the Court shall be voidable against all parties other than a minor.

    3. Obviously this means that a decree based on such agreement or compromise is not void but only voidable at the instance of the minor. Mr. De relies on a decision of this Court in 18 Pat 2711 where their Lordships had to deal with a suit brought by a minor to set aside a decree based on an award which was made on a reference: obtained by his guardian without the requisite sanction under O. 32, R. 7. It was held that in view of the provisions of O. 32, R. 7, Which were applicable to the case the decree based on the award was not binding on the minor. Mr. De has referred to certain observations in the judgment of his Lordship the Chief Justice, to the effect that the decree was invalid against the minor. Nowhere from that decision it appears that their Lordships decided or were required to decide whether the decree was void or only voidable at the instance of the minor. What their Lordships actually decided was that the express provisions of O. 3.2, R. 7, having been contravened, the decree was not binding on the minor. Indeed in AIR 1931 Bom 500,2 which was referred to in that decision, their Lordships of the Bombay High Court observed that the award and decree based in terms of the award were void. But this observation cannot be taken to be an authority in view of the plain language of sub-r. 2, of O. 32, R. 7. In this Bombay case also their Lordships were dealing with a suit to set aside a decree.

    4. The position is quite different where objection to the validity of a decree passed in contravention of the provisions of O. 32, R. 7, is taken in the execution proceeding. It is a well settled principle of law that an executing Court cannot go behind the decree. No doubt if it appears that the Court had no jurisdiction to pass the decree, the decree would be altogether void and in that case, it would be open to the executing Court to disregard it and refuse to execute it. This was the view taken by a Full Bench of this Court in 4 Pat LJ 240,3 where a decree passed against a dead man was held to be a nullity and therefore inexecutable against his legal representatives. Sir Dawson Miller C.J, in that case very clearly pointed out the distinction between a void decree and a voidable decree. A void decree can be treated as non-existent and of no binding force or effect; a voidable decree is valid and binding until it is declared to be invalid by a competent tribunal. A decree is void when the Court which passed it had no jurisdiction whether territorial or pecuniary or over the subject-matter or in respect of the judgment-debtor's person to make it. Where however the Court had complete jurisdiction to hear a case but passes a decree in disregard of some provisions of law, the decree is voidable and is binding until it is set aside in an appropriate proceeding.

    5. In this connexion reference may be made to the decision of this Court in 2 Pat 335.4 Again in 12 Pat 1175 it was clearly pointed out that there is a distinction between an inherent lack of jurisdiction in a Court and lack of jurisdiction on grounds which have to be determined by the Court itself. The first makes the decree a nullity which can be ignored and need not be set aside. The second does not make the decree a nullity but only voidable; such a decree can be set aside by adopting the proper procedure, but cannot be collaterally impeached. It was further held in that case that where minors were properly represented in a suit but there was no formal order for the appointment of their guardian, it was a case of a mere irregularity which did not vitiate the decree. In the present case there is no justification for holding that the decree in question is a nullity. It is futile to suggest that the minors were not before the Court and therefore the Court had no jurisdiction over them; in fact they did appear in Court through a guardian who acted for them though there might be no formal order appointing him. The decision of the Privy Council in 32 Cal 2966 relied on by Mr. De is distinguishable because in that case what was decided by their Lordships was that the Court had no jurisdiction to sell the property of persons who were not parties to the proceedings or properly represented on the record. There also the question was raised in a suit and not in an execution proceeding.

    6. There is an equally effective answer to Mr. De's contention. We are not quite sure on the face of the records before us if any order was at all made by the Court appointing the mother as guardian for the suit. On the other hand, we find that at the earliest stage before the time for filing written statement came, Muhammad Sadiq appeared for self and as guardian of the minors and at subsequent stages also he appears to have acted as their guardian. The application for reference to arbitration was signed by him for self and as guardian of the minors and he also asked for leave of the Court as required by O. 32, R. 7 of the CPC, which was allowed. Though there might be no formal order of the Court appointing him as the guardian of the minors, the question may arise whether they were effectively represented in the suit. It has been held by their Lordships of the Judicial Committee in 30 Cal 10217 that where a guardian for a minor defendant appeared in the suit and effectively represented him although no formal order of appointment was made, the decree could not be said to be invalid against the minor unless prejudice was shown. Whether in the present case the minors were effectively represented and whether they suffered any prejudice are questions which cannot be investigated in the execution proceeding. For these reasons I must hold that the objection was rightly disallowed by the Subordinate Judge. I would therefore dismiss the appeal with costs.

    Rowland, J.:— I agree. All Mr. De's research and his interesting argument failed to produce before us any instance in which in a case of this nature the judgment-debtor against whom a decree had been passed had successfully objected to its execution on the ground of its being a nullity. The cases which he cited were cases in which the minors against whom a decreovhad been passed had brought suits and obtained declarations that the decree was not binding on them or had obtained a judgment and decree setting aside the decree. In one instance the minors had appealed from a preliminary decree and this decree was set aside on appeal. The mere fact that in AIR 1931 Bom 500 and AIR 1934 Cal 8458 the word ‘void’ appears along the observations of the learned Judges will not suffice to make them authority for what was not decided and was not necessary to be decided in those cases. The decisions in 32 Cal 296 and 4 Pat LJ 240 were cases affecting the estate of a deceased party whose estate after his death was not represented. That is quite a different position from the one before us.

    N.K/R.K

    7. Appeal dismissed.

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    Comments

    Umar And Others v. Mahabir Lal Sahu And Others
    (Jul 28, 1939)