Raj Kishore Das v. Ram Gulam Sahu (Opp-Party).

Dawson Miller, C.J:— This is an application on behalf of certain minors for leave to appeal to His Majesty in Council from a decision of this court dated the 19th April 1920. The facts are somewhat peculiar but may be shortly stated. The petitioners and one Shyam Sahai Das are members of a joint Hindu family. They were sued by the respondents and a decree was obtained against them for a sum of Rs. 29,000. In execution of that decree on the 21st March 1919, certain property belonging to the judgment-debtors was sold in execution and purchased by the decree-holders for a sum of Rs. 36,783, the decretal amount by reason of interest which had accrued having at that time amounted to considerably more than Rs. 29,000. Of the judgment-debtors who formed the joint family the only adult member of the family was Shyam Sahai Das, the other members who are present petitioners to the court being minors. In those proceedings the minors were represented by a guardian Babu Basanta Kumar Neogi. The property having been sold, two applications were presented under Order XXI, rule 90 one on the 28th March 1919, by Shyam Sahai Das and the other on the 3rd April 1919 by the minor members of the family, praying to set aside the same on the ground of material irregularity within the meaning of that rule. On the 12th April 1919 a petition of compromise was filed by all the parties asking that the case might be settled upon the terms agreed to, by the compromise which were that if the judgment-debtors paid the sum of Rs. 37,283 by the 27th May the sale should be set aside and that if they failed to pay that sum by the date mentioned the sale should be confirmed. An order was made by the District Judge when the petition came before him in the presence of the parties, the order being in the terms of the compromise, to the effect that if the money was paid on the date mentioned the sale should be set aside and if not the sale should be confirmed. In the result the judgment-debtors failed to pay the sum of Rs. 37,283 by the 27th May on that day a petition was filed by Shyam Sahai Das in which he alleged that subsequently to the compromise the decree-holders had agreed to take a smaller sum viz., Rs. 30,400 in full satisfaction of their claim and further that payment should be made as to Rs. 15,000 on the 27th May and the balance of Rs. 15,400 in two months time. This variation of the compromise was disputed by the decree-holders and on the 10th June when the matter came up for determination by the Subordinate Judge he found that the variation of the compromise alleged by Shyam Sahai Das had not been established and the application was rejected. The result therefore would be that the money not having been paid by the time stipulated in the compromise the sale would be confirmed, but in the course of the argument Shyam Sahai Das urged the contention that the court in passing its order on the 12th April recording the compromise had not recorded in express terms its leave to compromise on behalf of the minors, and that the order was therefore not binding. The Judge was of opinion that Shyam Sahai Das himself was bound by the compromise originally made but that it was not binding on the minors and that their application under Order XXI, rule 90 should be tried and heard on the merits. Against that order the decree-holders moved the High Court and obtained a rule and served the minors with notice through their guardian ad litem Babu Basanta Kumar Neogi. The guardian did not appear in those proceedings and accordingly a new guardian ad litem Babu Narendra Nath Sen was appointed by the High Court and the old guardian was discharged. The High Court, when the matter came before them, held that the order of the Subordinate Judge setting aside the consent order without any application by the minors was with jurisdiction and that the order of the 12th April should stand.

2. It is from that decision of the High Court that the minors seek to appeal to His Majesty in Council.

3. It is objected by the respondents that this is really an attempt to appeal from an order or decree made by consent. That, however, in my opinion is not the case.

4. The order which it is sought to appeal from, is an order made by the High Court after contest by both the parties. The fact that it decided one way or the other whether an order recording a compromise agreement was a valid order, does not in any way make the order appealed from an order by consent, and were this all, I think it would be a proper case in which to issue certificate asked for.

5. It appears however that the present application by the minors is presented not in the name of the guardian ad litem appointed by the High Court viz., Babu Narendra Nath Sen but in the name of Babu Basanta Kumar Neogi who at the date when the application was presented no longer represented the minors. The application therefore cannot in my opinion be entertained as it contravenes the provisions of O. 32, R. 5 of the CPC which lays down that every application to the court on behalf of the minor other than an application under R. 10, sub-R. (2) shall be made by his next friend or by his guardian for the suit. 1 he application made in the present case is not made by the guardian for the suit who is Babu Narendra Nath Sen but is made by the previous guardian ad litem who long before the application was made had been discharged by the court. The result is that this application must be rejected. The respondents, are entitled to their costs.

6. Adami, J.:— I agree.

7. Application rejected.