Appeal No 216 of 1956
Appeal by special leave from the judgment and decree dated August 28 1950 of the Punjab High Court in Civil Regular First Appeal No 343 of 1944
LK Jha K P Bhandari and Harbans Singh for the appellants
Darya Datt Chawla for respondent Nos
1i to iii
February 9
The Judgment of the Court was delivered by GAJENDRAGADKAR J
This appeal by special leave arises from a partition suit filed by Baij Nath against his other coparceners
Baij Nath is the son of Behari Lal and he had four brothers Kidar Nath Raghunath Sahai Jagan Nath and Badri Nath
Kidar Nath was dead at the time of the suit and his branch was represented by his five sons Ghansham Lal Shri Ram Hari Ram Tirath Ram and Murari Lal who were impleaded as defendants 1 to 5 respectively
On the death of Ghansham Lal pending the Suit his two minor sons Jai Pal and Chandar Mohan were brought on the record as his legal representatives and their mother Mst
Kaushalya was appointed guardian ad item
The two minors are the appellants before us
Chuni Lal the son of Raghunath Sahai was defendant 6 Bal Kishan and Hari Kishan the two sons of Jagan Nath were defendants 7 and 8 and Badri Nath was defend
ant 9
Baij Nath s case was that the family was undivided and he wanted a partition of his share in the family properties and so in his plaint he claimed appropriate reliefs in that behalf
The several defendants made out pleas in respect of the claims made by Baij Nath but for the purpose of this appeal it is unnecessary to refer to the said pleas
The suit wail instituted on Juno 11 1941 771 It appears that by consent of parties a preliminary decree was drawn by the trial court on October 30 1941 but the validity of this decree was successfully challenged by an appeal to the Lahore High Court
It was held by the High Court that all parties had not joined in the compromise and so the preliminary decree could not be sustained
In the result the said decree was set aside and the case was remanded for trial
It further appears that after remand parties again came together and by consent requested the court to pass a preliminary decree once again
This was done on October 15 1943
This preliminary decree specified the shares of the respective parties and left three outstanding issues to be determined by Chuni Lal defendant 6 who it was agreed should be appointed Commissioner in that behalf
Pursuant to this preliminary decree the Commissioner submitted his interim report on November 191943 and his final report on November 29 1943
On receipt of the reports the trial court gave time to the parties to consider the said report which had been explained to them
Parties wanted time and so the case was adjourned
Since the property in dispute was valuable and the parties were unable to make up their minds about the said reports further time was granted to them by the court to consider the matter
Ultimately when parties did not appear to come to any settlement about the reports the case was adjourned to December 17 1943 for objections to be filed by the parties
Tirath Ram defend ant 4 alone filed objections nobody else did
The said objections were considered by the court in the light of the evidence which had been led and a final decree was drawn on June 21 1944
Against this decree an appeal was preferred by the appellants before the High Court of Punjab and it was urged on their behalf that the preliminary decree was invalid in that at the time of passing the said decree the court had failed to comply with the mandatory provisions of 0 32 r 7 of the Code of Civil Procedure
The High Court did not allow the appellants to raise this point because it held that their 99 772 failure to make an appeal against the preliminary decree precluded them from challenging its correctness or validity under section 97 of the Code
Certain other minor objections were raised by the appellants on the merits but they were also rejected
In the result the appeal failed and was dismissed but in view of the circumstances of the case the parties were directed to bear their own costs
It is this decree that is challenged by the appellants in their present appeal by special leave and the only point which has been urged by Mr Jha on their behalf is that the High Court was in error in disallowing the appellants to challenge the validity of the preliminary decree in their appeal before it
Mr Jha contends that in dealing with the question about the competence of the plea raised by the appellants the High Court has misjudged the effect of the provisions of 0 32 r 7
It is common ground that at the time when the preliminary decree was passed by consent and the appellants  guardian Kaushalya Devi agreed to the passing of such a preliminary decree and to the appointment of Chuni Lal as Commissioner the appellants were minors and that leave had not been obtained as required by 0 32 r 7
Order 32 r 71 provides that 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 the minor with reference to the suit in which he acts as next friend or guardian
It is also not disputed that the agreement which resulted in the drawing up of the preliminary decree and the appointment of Chuni Lal as Commissioner fell within the scope of this rule and that sanction required by the rule had not been recorded in the proceedings
The argument is that the failure to comply with this mandatory provision of the rule makes the agreement and the preliminary decree void and if that is so section 97 of the Code of Civil Procedure would be no bar in the way of the appellants challenging the validity of the decree at the appellate stage
The effect of the failure to comply with 0 32 r 71 is specifically provided by 0 32 r 72 which says 773 that 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
Mr Jha reads this provision as meaning that the impugned agreement is voidable against the parties to it who are major and is void in respect of the minor in other words he contends that the effect of this provision is that the major parties to it can avoid it and the minor need not avoid it at all because it is a nullity so far as he is concerned
In our opinion this contention is clearly inconsistent with the plain meaning of the rule
What the rule really means is that the impugned agreement can be avoided by the minor against the parties who are major and that it cannot be avoided by the parties who are major against the minor
It is voidable and not void
It is voidable at the instance of the minor and not at the instance of any other party
It is voidable against the parties that are major but not against a minor
This provision has been made for the protection of minors and it means nothing more than this that the failure to comply with the requirements of 0 32 r 71 will entitle a minor to avoid the agreement and its consequences
If he avoids the said agreement it would be set aside but in no case can the infirmity in the agreement be used by other parties for the purpose of avoiding it in their own interest
The protection of the minors  interest requires that he should be given liberty to avoid it
No such consideration arises in respect of the other parties to the agreement and they can make no grievance or complaint against the agreement on the ground that it has not complied with 0 32 r 71
The non observance of the condition laid down by r 1 does not make the agreement or decree void for it does not affect the jurisdiction of the court at all
The non observance of the said condition makes the agreement or decree only voidable at the instance of the minor
That in our opinion is the effect of the provision of 0 32 r 71 and 2
The question as to the procedure which the minor should adopt in avoiding such an agreement or decree has been the subject matter of several decisions and 774 it has been held that a compromise decree may be avoided by the minor either by a regular suit or by an application for review by the court which passed the said decree
The decision in Manohar Lal vs Jadu Nath Singh 1 is an illustration of a suit filed by the minor for declaration that the impugned decree did not bind him
It is however not necessary for us to deal with this aspect of the matter in the present appeal any further
In support of his argument that the failure to comply with the requirements of 0 32 r 71 makes the decree a nullity Mr Jha has very strongly relied on the decision of the Privy Council in Chhabba Lal vs Kallu Lal 2
In that case an objection to the validity of a reference to arbitration was taken by a party in an appeal against the decree passed on an award and one of the points raised for the decision before the Privy Council was whether an appeal lay against the decree in question
Under Schedule 2 paragraph 162 of the Code which was then in force it was provided that upon the judgment pronounced according to the award a decree shall follow and no appeal shall lie from such decree except in so far as it is in excess of or not in accordance with the award
The argument urged against the competence of the appeal was that the objection against the validity of the reference and the award could and should have been raised under paragraph 151c of the said Sche dule and since such an objection had not been so raised and a decree was drawn in accordance with the award under paragraph 16 r 1 no contention could be raised against the validity of the decree outside the terms of paragraph 162
This argument was repelled by the Privy Council
It was held that the objection against the validity of the reference based on the ground that the requirements of 0 32 r 71 had not been complied with did not fall within the purview of paragraph 151c
The said paragraph specified the grounds on which an award could be challenged
It provided that the award could be set aside if it was made after the issue of an order by the 1 1906 LR 33 I A 128
2 1946 LR 73 IA 52
775 court superseding arbitration and proceeding with the suit or if it was made after the expiration of the period allowed by the court or if it was otherwise invalid
It is on the last clause in paragraph 151c that reliance was placed in support of the contention that the challenge to the validity of the reference should have been made under the said clause
The Privy Council did not uphold this argument
 In their opinion observed Sir John Beaumont who spoke for the Board  all the powers conferred on the court in relation to an award on a reference made in a suit presuppose a valid reference on which an award has been made which may be open to question
If there is no valid reference the purported award is a nullity and can be challenged in any appropriate proceeding
 It is on this last observation that Mr Jha has naturally relied but in our opinion the observation in question does not purport to be a decision on the interpretation of 0 32 r 72
The context shows that the said observation was made in support of the decision that the challenge to the validity of the arbitration and the award could not have been made under paragraph 151c and nothing more
We are not prepared to extend this observation to cases like the present where the point in dispute is in regard to the interpretation of 0 32 r 7
It is significant that while describing the award as a nullity the Privy Council has also added that it can be challenged in any appropriate proceeding which postulates the adoption of necessary proceedings to avoid the award
The point for consideration by the Privy Council was whether a proceeding under paragraph 151c was indicated or whether an appeal could be regarded as an appropriate proceeding but it was assumed that a proceeding had to be adopted to challenge the award
The decision of the Privy Council was that the validity of the award could be challenged by an appeal because it could not have been challenged under paragraph 151c
Since it could not be challenged under paragraph 151c according to the Privy Council paragraph 162 could not be invoked against the competence of the appeal
It is unnecessary 776 for us to examine the merits of the said decision in the present appeal
All that we are concerned to point out is that the observation in the judgment on which Mr Jha relies cannot be treated as a decision on the interpretation of 0 32 r 72
That question did not directly arise before the Privy Council and should not be treated as concluded by the observation in question
As we have already pointed out the words used in 0 32 r 72 are plain and unambiguous and they do not lend any support to the argument that non compliance with 0 32 r 71 would make the impugned decree a nullity
Mr Jha has also relied upon another decision of the Privy Council in Jamna Bai vs Vasanta Rao 1
In that case two defendants of whom one was a minor compromised a suit pending against them and in doing so entered into a bond by which they jointly agreed to pay a certain sum to the plaintiff at a future date
The leave of the court was Dot obtained on behalf of the minor as required by section 462 of the Code of Civil Procedure 1882 which was then in force
When a claim was made on the said bond it was held that the bond was not enforceable against the minor but it was enforceable for the full amount against the joint contractor
We do not see how this case assists the appellants
It appears that Jamna Bai who was the joint contractor on the bond advanced the plea that one of the two promisers can plead the minority and consequent immunity of the other as a bar to the promise s claim against him
This plea was rejected by the Privy Council and that would show that the bond which was executed in pursuance of a compro mise agreement was not treated as null and void but as being unenforceable against the minor  alone
In that connection the Privy Council observed that the minor s liability could not be enforced in view of the fact that the requirements of section 462 of the Code had not been complied with
Indeed in the judgment an observation has been made that the Privy Council was not expressing any opinion as to whether the bond could be enforceable against a minor even if section 462 had 1 1916 LR43 IA99 777 been complied with
Thus this decision is of no assistance to the appellants
Similarly the decision of the Privy Council in Khiarajmal vs Daim 1 can also be of no help to the appellants because in that case all that the Privy Council decided was that a court has no jurisdiction to sell an equity of redemption unless the mortgagors are parties to the decree or the proceedings which lead to it or are properly represented on the record
In other words if a minor is not properly represented on the record no order passed in the proceedings can bind him
We are unable to see how this proposition has any relevance to the point which we are called upon to decide in the present appeal
If the preliminary decree passed in the present proceedings without Complying with the provisions of 032 r 71 is not a nullity but is only voidable at the instance of the appellants the question is can they seek to avoid it by preferring an appeal against the final decree  It is in dealing with this point that the bar of section 97 of the Code is urged against the appellants
Section 97 which has been added in the Code of Civil Procedure 1908 for the first time provides that where any party aggrieved by a preliminary decree passed after the commencement of the Code does not appeal from such decree he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree
It is urged for the appellants that an appeal is a continuation of the suit and so the appellants would be entitled to challenge the impugned preliminary decree as much by an application made in the suit itself as by an appeal preferred against the final decree passed in the said suit
It is true that the proceedings in appeal can be regarded as a continuation of the proceedings in suit but the decision of the question as to whether the appellants can challenge the said preliminary decree in their appeal against the final decree must in the present case be governed by the provisions of section 97 of the Code
The whole object of enacting section 97 was to make it clear that any party 1 1904 LR 32 IA 23 778 feeling aggrieved by a preliminary decree must appeal against that decree if he fails to appeal against such a decree the correctness of such a decree cannot be challenged by way of an appeal against the final decree which means that the preliminary decree would be taken to have been correctly passed
When section 97 provides that the correctness of the preliminary decree cannot be challenged if no appeal is preferred against it it clearly provides that if it is not challenged in appeal it would be treated as correct and binding on the parties
In such a case an appeal against the final decree would inevitably be limited to the points arising from proceedings taken subsequent to the preliminary decree and the same would be dealt with on the basis that the preliminary decree was correct and is beyond challenge
It would be idle to contend that what is prohibited is a challenge to the factual correctness of the decree on the merits because if the said decree is voidable as in the present case the very point as to its voidable character is a part of the merits of the dispute between the parties
Whether or not 0 32 r 71 applies to the case would certainly be a matter of dispute in such a case and the object of section 97 is precisely to disallow any such dispute being raised if the preliminary decree is not challenged by appeal
The whole object which section 97 intends to achieve would be frustrated if it is held that only the factual correctness of the decree cannot be challenged but its legal validity can be even though an appeal against the preliminary decree has not been filed
Therefore in our opinion the High Court was right in coming to the conclusion that it was not open to the appellants to challenge the validity of the preliminary decree in the appeal which they had preferred against the final decree before the said High Court


Summary:
The City of Bangalore Municipal Corporation resolved to levy octroi on cotton and wool and the resolution was notified in the Official Gazette as required by section 981 of the City of Bangalore Municipal Corporation Act
Objections were invited and the appellants filed their objections to the tax
Final resolution in regard to the tax was passed under section 982 of the Act which was published in local newspapers but not in the Official Gazette
Notices were also sent to the appellants to the effect that after considering their objections the Municipality had decided to levy octroi on the goods at the rate already notified
The appellants then filed applications in the High Court under article 226 of the Constitution challenging the legality of the levy of octroi but the High Court dismissed the applications
On appeal with a certificate of the High Court Held that publication of the resolution in the Official Gazette and invitation of objections under section 981 which were filed were sufficient compliance with the provisions of the Act
The notice stating that the tax had been resolved to be levied instead of stating that it was intended to be levied was at the most only technically defective but all such defects were validated by section 38 of the Act
It was not necessary first to pass a resolution specifying the goods and then another resolution showing the intention of the Municipality to tax those goods
The goods and the rate of tax were specified and the resolution was passed after following the procedure laid down in section 981
This amounted to substantial compliance with the provisions of the Act
The legislature has laid down the powers of the Municipality to tax various goods and enumerated certain goods Class VIII in Part V of Schedule III read with section 97e of the Act authorised the Municipality to impose tax on other articles and goods
In 699 the present case there was a resolution which sought to include the goods in dispute in the Schedule for the purpose of imposing the tax
Bijay Colton Mills Ltd vs Their Workmen 1960 2 SCR 982 distinguished
The conferment of power upon the Municipality to specify goods under Class VIII is in the nature of conditional delegation and does not amount to excessive delegation
Baxter vs Ah Way   followed
Hamdard Dawakhana vs Union of India   held not applicable
The High Court was right in holding that Cotton and Wool do not cease to be raw materials for the purposes of the Act merely because they are ginned and pressed in bales
The resolution in the present case covered the articles imported by the appellants into the limits of the Corporation of Bangalore