Case: Kaushalya Devi And Others Vs. Baijnath Sayal And Others

Privy Council in Jamna Bai v. Vasant Rao, 43 Ind App 99: (AIR 1916 PC 2). 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 not obtained on behalf of the minor as required by S. 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 promisors can plead the minority and consequent immunity of the other as a bar to the promisees 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 compromise 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 minors liability could not be enforced in view of the fact that the requirements of S. 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 S. 462 had been complied with. Thus this decision is of no assistance to the appellants. Similarly, the decision of the Privy Council in Khiarajmal v. Daim, 32 Ind App 23 (PC), 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. 9. If the preliminary decree passed in the present proceedings without complying with the provisions of O. 32, R. 7(1) 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 S. 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. 10. 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 S. 97 of the Code. The whole object of enacting S. 97 was to make it clear that any party feeling aggrieved by a preliminary decree must appeal against the 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 S. 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 by limited to the points arising form 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 O. 32, R. 7(1) applies to the case would certainly be a matter of dispute in such a case and the object of S. 97 is precisely to disallow any such dispute being raised if the preliminary decree is not challenged by appeal. The whole object which S. 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.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]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 O. 32, R. 7(1) 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 arised 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 O. 32, R. 7(1).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 nonobservance 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 O. 32, R. 7(1) and (2)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 O. 32 R. 7(2). 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 15 (1) (c) 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 O. 32,R. 7. It issignificant 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 proceeding to avoid the award. The point for consideration by the Privy Council was whether a proceeding under paragraph 15 (1) (c) 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 15 (1) (c). Since it could not be challenged under paragraph 15 (1) (c), according to the Privy Council paragraph 16(2) could not be invoked against the competence of the appeal. It is unnecessary 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 O. 32, R. 7 (2). 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 O. 32, R. 7(2) are plain and unambiguous and they do not lend any support to the argument that non-compliance with O. 32, R. 7(1) would make the impugned decree a nullityThus this decision is of no assistance to the appellantsIt 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 S. 97 of the Code. The whole object of enacting S. 97 was to make it clear that any party feeling aggrieved by a preliminary decree must appeal against the 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 S. 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 by limited to the points arising form 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 O. 32, R. 7(1) applies to the case would certainly be a matter of dispute in such a case and the object of S. 97 is precisely to disallow any such dispute being raised if the preliminary decree is not challenged by appeal. The whole object which S. 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.