This appeal arises out of a suit upon a bond executed by the Defendant No. 1 and the father of the minor Defendant No. 2. The defence was simply one of payment. The guardian of the minor Defendant No. 2, having regard to the provisions of sec. 9 of the Indian Oaths Act of 1873, stated that if the Plaintiff should swear in accordance with a particular form of oath whether he had or had not received the money said to have been paid, he would abide by the result. Accordingly, the Plaintiff did take the form of oath required, and deposed that no payment had been made and that the whole of the money was due to him. Accordingly the Court, of first instance gave a decree to the Plaintiff, and that decree has been affirmed in appeal by the District Judge.
The only question raised before us in this second appeal is, that under sec. 462, of the Code of Civil Procedure it was not open to the guardian of the minor Defendant, without the leave of the Court to enter into the agreement that he did enter into in respect to the decision of the Court depending upon the evidence to be given by the Plaintiff. We think, however, that the matter does not really come within the scope of sec. 462. There was no agreement or compromise properly so called that was entered into by the guardian of the minor Defendant. What he did was simply this; The burden of proof of payment being, upon him, he cited the Plaintiff as a witness and stated that if the Plaintiff would take a particular form of oath and depose that the whole of the money was actually due to him and was not paid by the Defendants, he would abide by the result. That we think stands on a very different ground from an agreement or compromise contemplated by sec. 462. We observe that in the case of Chengal Reddi v. Venkata Reddi*(1) the Madras High Court has held that in circumstances like these the minor Defendant is bound by the consent of his guardian, if there is no fraud or gross negligence on the part of the latter, and although the Court did not sanction the agreement under sec. 462 of the Code of Civil Procedure. We think that this is a correct exposition of the law; and taking the same view as the Madras High Court did, we dismiss this appeal with costs.
S.C.S
Appeal dismissed with costs.