l Appeal 483 of 1957
Appeal from the judgment and decree dated November 25 1949 of the Madras High Court in Appeal No 66 of 1946
A V Viswanatha Sastri and TVR Patachar for the appellant
Bhimsenakarama and B KB Naidu for respondents Nos 1 and 2
T Satyanarayan for respondents Nos 7 and 8 1962
April 27
Sarkar J delivered a separate Judgment
The Judgment of Subba Rao and Mudholkar JJ was delivered by Subba Rao J 501 SARKAR J
In 1929 one Bapiah filed a suit against the appellant then a minor his father and another person on a promissory Dote executed by the two last mentioned persons The appellant was represented in that suit by his maternal grandfather as his guardian ad litem A decree was passed in that suit
The decree holder put the decree in execution and obtained an order for the sale of certain properties in which the appellant was interested
The properties were sold in due course in favour it is said
 of a clerk of the decree holder
Thereafter the appellant s guardian ad litem made an application under O 21 r 90 of the Code of Civil Procedure for setting aside the sale
Later however the guardian ad litem came to a settlement with the decree holder and the auction purchaser that the guardian ad litem would give up the contention regarding the invalidity of the sale and withdraw the petition to set it aside and also give up possession of the properties sold to the auction purchaser and decree holder and the auction purchaser in their turn would give up their claim for costs of the petition
In pursuance of this agreement the petition was withdrawn and dismissed by order made on August 12 1932
After attaining majority the appellant filed a suit in 1944 to set aside the order of August 12 1932 and for a re hearing of the petition which was dismissed by the order of that date
It is from this suit that the present appeal arises
The suit was decreed by the trial Court but on appeal the decision of the trial Court was reversed by the High Court at Madras and the suit was ordered to be dis missed
There is no dispute that the suit was competent and within time
The only question in this appeal is whether the order of August 12 1932 is voidable under O 32 r 7 of the Code of Civil Procedure 1908 at the instance of the appellant
That rule forbids the 502 guardian for the suit to enter into any agreement or compromise on behalf of a minor with reference to the suit without the leave of the court and provides that the any such agreement or compromise entered into without the leave of the court shall be voidable against all parties other than minor
Order 32 r 7 of the present Code corresponds to section 462 of the Code of 1882
It has been settled since the Code of 1882 was in force that the provision under the consideration applies to proceedings in execution though it only mentions agreement or Compromise with reference to the suit
As long ago as 1901 Jenkins CJ said in Virupakshappa vs Shidappa 1 I will first deal with the question whether section 462 applies to a compromise of execution proceedings
On the words of the section I think it does applications in execution are proceedings in the suit so that a compromise of such a proceeding would be a compromise with reference to the suit
This view has been followed ever since
The High Court took the view that a compromise of an execution proceeding would be within O 32 r 7 only when it affected directly the rights and liabilities created by the decree
It observed that the compromise in the present case was not affected by the rule as it concerned only the rights and liabilities under the auction sale and not those arising under the decree
I am unable to agree with this view
The High Court rested itself on the fact that all the reported decisions dealt with cases in which the agreements had directly affected the rights and liabilities under the decree
This does not to my mind furnish sufficient justification for the High Court s view
No decision has been brought to our notice in which it has been held that O 32 r 7 does not apply to a compromise of execution proceedings 1 1901 IRL  114 503 which does not directly affect the rights and liabilities created by the decree
It does not seem to me that on principle the High Court s view can be justified
It is true that O 32 r 7 does not apply to all agreements
In Bhodes vs Swithenbank 1 it was observed This is an action by an infant by means of her next friend who undoubtedly has the conduct of the action in his hands
If however the next friend does anything in the action beyond the mere conduct of it whatever is so done must be for the benefit of the infant and if in the opinion of the Court it is not so the infant is not bound
It may therefore be said that an agreement concerning the conduct of the proceeding does not require the sanction of the Court
Beyond this I find no justification for limiting the operation of the rule
I observe that Jenkins CJ in what I have earlier read from his judgment said that the rule applies to a compromise of execution proceedings
Therefore it seems to me that according to the learned Chief Justice it applies to all compromises of execution proceedings excepting of course compromises concerning the conduct of them and this whether the compromise directly affects the rights or liabilities under the decree or not
I think the principle of the rule was correctly stated by Heaton J when dealing with section 462 of the Code of 1882 he observed in Gurmallapa vs Mallappa 2 That section I think necessarily implies that during the continuance of proceedings in Court the dispute between the minor and another party which the Court had to decide could not be compromised except by the guardian ad litem of the minor and by him only with the leave of the Court
 I think that any compromise of a proceeding which concerns the dispute involved in it 1 578
2 1920ILR44 Bom574581
504 would require the sanction of the Court
I should also point out that sub r
6 of r 3 of O 32 provides that a person appointed guardian for the suit for a minor shall unless his appointment is terminated continue as such throughout all the proceedings arising out of the suit including the proceedings in execution of a decree
The object behind O 32 seems to me to be that when an infant is involved in a legal proceeding he should have a guardian assigned to him and that guardian should be under the control of the Court before which the proceeding is pending so as not to be able to affect the rights and liabilities of the infant the subject matter of the proceeding by a compromise which the Court has not approved as one for the benefit of the infant
If this is the prin ciple as I think it is there would be no justification for limiting the operation of the rule in its application to execution proceedings only to compromises which directly affect the rights and liabilities under the decree
The rule in my view would apply among others to compromises which bring a proceeding to an end and thereby affect the rights or liabilities of the infant involved in it
I think this view receives support from the observations of Varadachariar J in Katneni Venkatakrishnayya vs Ganapati China Kanakayya1 that Rule 7 deals with the conduct of a next friend  as such who as pointed out in Bhodes vs Swithenbank2 is an officer of the Court to conduct the suit and the principle underlying are 7 is that whenever he proposes to do anything beyond the normal conduct of the suit he has to obtain the leave of the Court to do so Quite obviously the word suit in this observation would include a proceeding in execution
It is of some interest to point out that the learned Judges of the High Court were careful to 1 1938 IIR Mad 819828
2 578 505 use the word directly they said the agreement or compromise in the present case did not directly deal with or regulate the extent and nature of the rights and liabilities under the decree which stand intact and unaffected as before
 This seems to me to indicate that the learned Judges were conscious that the compromise in this case affected the rights and liabilities of the appellant under the decree at least indirectly
It seems to me that if the rule prohibits an agreement which directly affects the rights and liabilities of an infant under a decree there would be no reason to think that it would not similarly prohibit an agreement deliberately made to affect the same rights and liabilities indirectly
The agreement challenged in this  case is as I shall endeavour to show of this kind
Turning now to the facts of this case I think the proceeding in which the compromise was arrived at was in the course of execution of the decree
It was a proceeding to challenge the validity of an execution sale
It was therefore a proceeding a compromise in reference to which would be governed by O 32 r 7 under the rule laid down in Virupakshappa s case1
It also seems to me clear that the compromise was not concerning the conduct of the proceeding
It brought the proceeding to an end and its result was that the appellant s right to question the validity of the sale was lost
He because bound by the sale good or bad
His liability under the decree was reduced only by the amount of the proceeds of the sale however inadequate a price might have been fetched in it
 It may be that if the proceeding to set aside the sale had been continued and not abandoned the sale might have been set aside and a fresh sale if one took place might have fetched a larger prim and thereby diminished the liability 1 am
109 I 506 under the decree to a greater extent
Such a compromise cannot be said to be one relating to the conduct of the proceeding
It seems to me also to be one affecting seriously the liability of the appellant under the decree since it deprived him of his right to have that liability reduced by a larger amount by a sale properly held
It is a compromise which from all points of view should have been made with the sanction of the Court
Before concluding I think it right to say that the decree holder and auction purchaser can derive no assistance from Jitendra Nath Rao vs Samarandra Nath Mitter1
In that case the Judicial Committee held that the agreement contemplated by O 32 r 7 is one which is made with a party to the suit or proceeding
Here the agreement was in the execution proceeding and it was made with the decree holder and the auction purchaser both of whom were parties to it the former having been a party to the suit itself out of which the execution proceeding arose
I think this appeal should be allowed
JSUBBA RAO J
This appeal raises the question of the construction of the provisions of Order XXXII r 7 of the Code of Civil Procedure
Bhushayya the appellant and respondents 7 and 8 herein are the sons of one Dokka Adeyya since died
On the basis of a promissory note executed by Dokku Adeyya and respondent 5 in favour of one Bapayya the latter filed CS No 88 of 1929 in the Court of the Subordinate Judge Bapatla and obtained a decree therein
In that suit the appellant who was then a minor was a defendent and was represented by his maternal grandfather  as his guardian
In execution of the said decree properties of Dokku Adeyya were brought 1 1943 LR 70 IA 68
507 to sale and were purchased by the decree holder s clerk Bapiraju subject to the mortgage in favour of the decree holder
Before the sale was confirmed on March 29 1932 the appellant represented by his maternal grandfather filed EA No 136 of 1932 to set aside the sale under Order XXI r 90 of the Code of Civil Procedure
The said petition was posted for inquiry to August 12 1932
On that day a memorandum was filed in the court by the guardian of the appellant to the effect that the matter was adjusted and that the petition should be dismissed as having been withdrawn
No sanction of the court was obtained by the guardian for withdrawing the petition
On the said day the court passed an order dismissing the application
Subsequently the sale was confirmed
On October 9 1944 the appellant who bad then attained majority filed a suit OS No 80 of 1944 on the file of the Subordinate Judge Tenali for setting aside the order dated August 12 1932 and to try the application for setting aside the sale on market
It was inter alia pleaded that the said order was void in as much as the guardian of the appellant withdrew the application without the sanction of the court as he should do under Order XXXII r 7 of the Code of Civil Procedure hereinafter referred to as the Code
The contesting defendants some of them being the subsequent aliences filed written statements seeking to sustain the validity of the said order
For the purpose of this appeal we need not notice any other point
The learned Subordinate Judge held that the withdrawal of the said petition and the consequent dismissal thereof was void as the guardian did not obtain the sanction of the Court under Order XXXII r 7 of the Code
On appeal the High Court came to the conclusion that Order XXXII r 7 of the Code had not relevance to an application for setting aside the sale in the circumstances of the cam
Hence the appear
508 The only question that arises in this appeal is whether the withdrawal of the said petition by the guardian was in contravention of Order XXXII r 7 of the Code
Before construing the provisions of the said Order it would be convenient to notice what exactly were the terms of the agreement
The High Court in its judgment summarised the factual position on that date thus The agreement is that the guardian adlitem should give up the contentions regarding the invalidity of the auction sale and should withdraw the petition to set aside the sale and also deliver up possession of the pro perties purchased to the auction purchaser and that the decree holder and auction pur chaser should give up their claim for costs o f the said petition
It was in pursuant of this agreement that the petition was withdrawn and dismissed no costs being given
This is the correct petition and we need not elaborate further on it
Order XXXII r 7 clauses 1 and 2 read as follow Clause 1 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 a minor with reference to the suit in which he acts as next friend or guardian
Clause 2 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
 In Madras there is also another clause viz cl
1 A introduced by an amendment made in 1910 and it reads Where an application is made to the Court for leave to enter into an agreement or 509 compromise or for withdrawal of a suit in pursuance of a compromise or for taking any other action on behalf of a minor or other person under disability and such minor or other person under disability is represented by counsel or pleader the counsel or pleader shall file in Court with the application a certificate to the effect that the agreement or compromise or action proposed is in his opinion for the benefit of the minor or other person under disability
A decree of other for the compromise of a suit appeal or matter to which a minor or other person under disability is a party shall recite the sanction of the Court thereto and shall set out the terms of the compromise as in Form No 24 in Appendix to this schedule
 Under this Order no guardian shall enter into an agreement or compromise on behalf of a minor with reference to a suit in which he acts as next friend or guardian
The short question is what is the meaning to be given to the words an agreement or compromise with reference to the suit  Mr Viswanath Sastri learned counsel for the appellant raised two contentions namely  1 That the execution proceedings are proceedings with reference to the suit and therefore any compromise or agreement entered into or effected by a guardian of a minor in execution proceedings affecting his rights procedural or substantive whether in issue in the suit or declared by the decree or not would require the sanction of the court and an agreement entered into without that sanction would be void
2 An application to set aside a sale is a proceeding with
in the meaning of section 141 of the Code  and therefore O XXXII r 7 as far as it can be made applicable would apply to such proceeding as the compromise was entered into by the guardian in such a proceed without the leave of the Court the said com 510 promise as well as the order made pursuant thereto was void
On the other hand Mr Bhimasankaram learned counsel for the respondents while supporting the test laid down by the High Court namely that an agreement to fall within the mischief of the said Order shall be such as deals directly with the rights and liabilities involved in the suit or defined by the decree attempted to abridge the scope of the test further by trying to make a distinction between an agreement relating to rights conferred by the decree and tht only relating to liabilities imposed thereunder
Order XXXII r 7 is one of the provisions designed to safeguard the interests of a minor during the pendency of a suit against hostile negligent or collusive acts of a guardian
The scope of the provisions is implicit in the phraseology used therein
The crucial words are any agreement or compromise  with reference to the suit
The words with reference if taken out of the context are of the widest import
They may take in  every procedural step in the conduct of a suit such as adjournment admission of documents inter locutories inspection etc and obviously it could not have been the intention of the Legislature that agreements in respect of such procedural steps should conform to the requirements of the rule
If that be not so the rule instead of protecting the interests of a minor would easily become a major obstacle in disposing of suits in which a minor is ranged as party on one side or the other
So consistent with the purpose of the rule the words  with reference to the suit must be limited to the rights put in issue in the suit
The next limitation is that the
protection is only during the pendency of the suit
When does a Suit come to an end It has been held that for the 511 purpose of the said rule an execution proceeding is a continuation of a suit see Virupakshappa vs Shidappa and Basappa1 Arunachellam Chetty vs Ramanadhan Chetty2 and Muthalakkammal Chetty vs Narappa Reddiar3
If it was a continuation the rule would also apply to an agreement or compromise with reference to the said execution proceeding
But just like in the case of a suit in the case of execu tion proceedings also the agreement or compromise shall be one affecting rights or liabilities ascertained or declared by the decree put in execution
As in the case of a suit so also in the case of an execution of a decree mere procedural steps not affecting the rights or liabilities so declared are not governed by the provision
The guardian may agree to an adjournment of a sale to a waiver of a fresh proclamation to a reduction of upset price etc
It could not have been the intention of the Legislature that every time such a step is taken the procedure laid down in Order XXXIII r 7 of the Code should be complied with
The next limitation is that the agreement or compromise shall be entered into with a party to a suit or his legal representative
The rule does not provide for dealings of a guardian with persons not parties to a suit
The question directly arose in a case which went up to the Privy Council viz in Jitendra Nath Roy vs Samarandra Nath Mitter4
There a decree obtained in favour of a minor represented by his guardian was assigned by the guardian for consideration to another without obtained the leave of the court
Advertising to the question of validity of such an assignment Lord Atkin observed They the Judges of the High Court took the view that in the rule in the phrase agreement or compromise with reference 1 Bom 1102 Mad 309
3 Mad 4304 1949 LR 70 IA 68
512 to the suit the words mean agreement with a party to the suit and do not cover a transfer of a decree to someone then unconnected with the suit even assuming that such transfer could properly be described as an agreement
They expressed their agreement on this point with a decision of the Full Bench of the Mad ras High Court in Katneni Venkatakrishnayya Garapati China Kanakayya1 which is preci sely in point
It appears to their Lordships that it cannot have been intended to require the leave of the court to an agreement for example made with a non partyto finance a suit whether with a stipulation to receive part of the proceeds or not
The Conjunction of the word agreement with the word com promise appears to indicate the kind of agreement intended
 We agree with these observations
The result is that Order XXXII r 7 of the Code will apply to only to an agreement or compromise entered into by a guardian of a party to the suit who is a minor with another party thereof during the pendency of the suit and the execution proceedings
The next question is whether the application for setting aside a sale is a proceeding in execution of a decree
Order XXI of the Code prescribes among others the different modes of execution one of them being execution against the property of a judgraent debtor
The Order also prescribes a procedure for sale of the said property and for setting aside a sale obtained by fraud or material irregularity
Under Order XXI r 92 where no application is made under r 89 r 90 or r 91 to set aside a sale or where the application is made and disallowed the Court shall make an order confirming the sale and thereupon the sale shall become abso 1 ILR 513 lute under sub r
3 of r 92 of the said Order No suit to set aside an order made under this rule shall be brought by any person against whom such order made
 It is therefore clear that Order XXI provides a self contained machinery for executing a decree and for deciding disputes that may arise in connection with the execution
The execution is not closed till the decree is discharged or barred by limitation
In this view we must hold that an application filed by a judgment debtor to set aside a sale is an application in execution of a decree
Even so as we have already indicated to attract Order XXXII r 7 of the Code the agreement or compromise entered into between the guardian and the auction purchaser shall be an agreement or a compromise affecting the rights or liabilities declared by the decree
Can it be said that in the present case the agreement affected any such right or liability  The suit was on the basis of a promissory note executed by the father and the brother of the appellant
The appellant was also a party to the suit
The decree was for recovery of the amount covered by the promissory note with interest
It did not in any way affect the title of the appellant to the entire or to any part of the property of the family sold in execution of the decree
The appellant by his guardian filed an application to set aside the sale on the ground of fraud and material irregularity in the conduct of the sale
The guardian agreed to withdraw the said application on certain conditions
The agreement also did not in any way affect the rights or liabilities declared under the decree
Not with stand
ing the agreement the decree was left intact
It is said that if the sale was set aside the decree would have to be executed afresh but as it was not aside on the basis of the said agreement the sale price in discharge of the decree therefore the argu
ment proceeds the agreement affected the discharge 514 of the decree
The father of appellant could have sold the family property out of court and could have out of the sale proceeds discharged the decree
In that event it could not be said that the sale affected the rights or liabilities decree
If so the sale of property through court cannot equally affect any such rights or liabilities declared by the decree
We therefore hold that the agreement or compromise entered into by the guardian in respect of such a sale did not affect the rights ascertained and declared by the decree and therefore the leave of court under Order XXXII r 7 of the Code was not necessary
Before leaving this part of the case we should make it clear that it is not our intention to lay down that under no circumstances an agreement or compromise entered into by a guardian to withdraw an application filed for setting aside a sale would be governed by Order XXXII r 7 of the Code
There may be arrangements or compromises in respect of such a petition whereunder the rights declared by decrees are affected
We also assumed for the purpose of this ease that the auctionpurchaser was a party to the suit as there was some controversy on the question whether he was a benamidar for the decree holder
Lastly it was contended that by reason of section 141 of the Code the procedure provided under Order XXXII r 7 should be extended to an agreement or a compromise entered into by a guardian in respect of an application to set aside a sale under Order XXI r 90 of the Code
The argument is that an application under Order XXI r 90 is an independent proceeding and as the agreement for withdrawing the said proceeding affects the right created by the sale it falls within the meaning of the said rule
Section 141 of the Code reads  The procedure provided in this Code in regard to suits shall be followed as far as it 515 can be made applicable in all proceedings in any Court of civil jurisdiction
The corresponding is
646 of the Code of 1882 read as follows The procedure herein prescribed shall be followed as far as it can be made applicable in all proceedings in any Court of civil jurisdiction other than suits and appeals
There was a conflict on the question whether the said section applied to proceedings in execution
To steer clear of the conflict the following Explanation was added to the section by the Civil Procedure Code Amendment Act 6 of 1892 Explanation This section does not apply to applications for the execution of decrees which are proceedings in suits But the section was construed by the Privy Council even without the said of the Explanation in Thakur Prasad vs Sheikh FakirUllah 1 wherein it observed  It is not suggested that section 373 of the Civil Procedure Code Order XXIII r I of the present Code would of its own force apply to execution proceedings
The suggestion is that it is applied by force of section 647 section 141 of the present Code
But the whole of Chapter XIX of the Code
consisting of 121 sections is devoted to  the procedure in executions and it would be surprising if the framers of the Code had intended to apply another procedure mostly unsuitable by saying in general terms that procedure for suits should be followed as far as applicable
Their Lordships think that the proceedings spoken of in 8 647 include original matters in the nature of suits such as 1 1894 LR 22 1
A 44 49
516 proceedings in probates guardianships and so forth and do not include executions
 This view has ever since been followed
We have already held that the application by the judgmentdebtor to get aside the sale is a proceeding in execution  and therefore section 141 of the Code will not apply for two reasons namely 1 as execution proceedings were continuation of suit within the meaning of Order XXXII r 7 of the Code and as the Code provided specifically for suits section 141 could not be invoked and 2 as we have held an application by a judgment debtor to get aside a sale is a proceeding in execution and therefore section 141 which applies only to original proceedings does not apply to such proceedings
In the result the appeal fails and is dismissed with costs of the contesting respondent
By COURT
In accordance with the opinion of the majority the appeal is dismissed with costs of the contesting respondents


Summary:
One B obtained a decree for money against the appellant and his father
The appellant was a minor and was represented by his maternal grandfather as his guardian
In execution certain properties were sold and the appellant filed an application for setting aside the sale through his guardian
The guardian entered into a compromise with the decree hold er and the auction purchaser under which the application was withdrawn
Subsequently the sale was confirmed
After at taining majority the appellant filed a suit for setting aside the order for withdrawal of the application for setting aside the sale and for a rehearing of that application on the ground that the guardian bad not obtained the leave of the court as required by O32 r  7 Code of Civil Procedure before entering into the compromise
Held per Suhba Rao and Mudholkar jj Sarkar J contra the O32 r7 was not applicable to the withdrawal of the application for setting aside the sale and the order for withdrawal of that application was binding on the appellant Order 32 r 7 is applicable only to an agreement or compromise with reference to the suit and there are the following limitations to its applicability i it is applicable only where the rights put in issue in the suit are involved and not to mere procedural steps ii it is applicable only during the pendency of the suit which includes execution proceedings and iii the agreement or compromise must be with a party to the suit
Though the application for setting aside the sale was an application in execution of the decree the agreement or compromise entered into by the guardian with the auction purchaser to withdraw the application did not affect the rights and liabilities declared by the decree and therefore leave of the court under O32 r7 was not necessary
Section 141 of the Code 500 could not be utilised to make O32 r7 applicable to the agreement in question
as section 141 was applicable to original proceedings and not to proceedings in execution
Virupakshappa vs
Shidappa and basappa
110 Arunachellam Chetty vs Ramanadhan Chetty Mad 309 Muthalakkammal vs Narappa Reddier 1933 ILR  Jitendra Nath Roy vs Samarendra Nath Mitter 1943 LR 70 IA 68 Katneni Venkatakrishnayya vs Garapati China Kanakayya ILR and Thakur Prasad vs Sheikh Fakir Ullah 1894 LR 22 IA 44 referred to
Per Sarkar J
The leave of the court under O32 r 7 was necessary before the guardian could enter into the agree ment or compromise to withdraw the application for setting aside the sale
There was no justification for limiting the operation of the rule in its application to execution proceedings only to compromises which directly affected the rights and liabilities under the decree it was applicable to all compromises which brought a proceeding to an end thereby affecting the rights and liabilities of the minor The compromise in the present case was not merely concerned with the conduct of proceedings but it seriously affected the liability of the appellant under the decree
Virupakshappa vs Shidappa 19011LR Rhodes vs Swithenbank 1889 L R  Gurmallappa vs Mallappa Bom
574 and Katneni Venkatakrishnayya vs Ganapati China Kanakayya 1938 ILR Mad 819 referred to