judgement:
iminal Appeal No. 60 of 1962.
Appeal by special Leave from the judgment and order dated October 25, 1961, of the Punjab High Court in Criminal Appeal No. 890 of 1961 of Murder Reference No. 74 of 1961.
Jai Gopal Sethi, C. L. Sareen and R. L. Kohli, for appellant.
Gopal Singh, D. Gupta, P. D. Menon, for respondent.
April 27.
The Judgment of the Court was delivered by DAS GUPTA, J.
The Appellant was convicted by the Sessions Judge, Patiala, of an offence under s.302 of the Indian Penal Code for the murder of Gurdev Singh and sentenced to death.
The Punjab High Court dismissed his appeal and confined the sentence of death.
The present appeal is on the strength of special granted by this Court.
The prosecution case is that at about 2.30 p.m. on November 18, 1960 when Gurdev Singh was passing the tea stall of Cbaran Singh, not far from the courts at Barnala on a motor cycle, the appellant Sewa Singh, who was at that time in that shop with a double barrel gun stood up and fired a shot at him.
Gurdev Singh was hit on the right side of his chest and died instantaneously.
The appellant and one Gogar Singh, who was with him, ran away.
The accused pleaded not guilty.
It was not disputed that Gurdev Singh had died of a gun shot 547 injury at the time and place as alleged.
It was satr entiously contended, however, that he was not the culprit.
According to the prosecution this occurrence was witnessed by Charan Singh, the owner of the shop and Mukhtiar Singh, a Student, and Bakhtawar Singh, the two persons who were having tea in the shop.
At the trial Charan Singh denied any knowledge as to who had fired the shot and was declared hostile by the prosecution.
The other two witnesses gave evidence that they saw the present appellant, who was known to them from before, firing the shot from a double barrel gun.
Their evidence was believed by the Trial Judge and also by the High Court.
In support of the appeal it is contended by Mr. Sethi that we should look at the evidence ourselves as the High Court does not appear to have taken into consideration, in appreciating the evidence, the Characteristics of the injuries caused by the shot.
He has drawn our attention to a decision of this Court in Zora Singh vs The State of Punjab (Criminal Appeal No. 81 of 1957: Judgment delivered on 10.5 1957).
According to the learned Counsel these features of the injury as they appear from the Doctor 's evidence clearly show that when the gun was fired it was held in close contact with the body of the victim or within two or three inches of it.
This, argues the learned Counsel, shows that the witnesses who have claimed to have been the occurrence did not actually see the occurrence as they give a totally different version as regards the distance of the gun from the body of the victim.
It has to be mentioned that the judgment of the High Court contains no discussion on this point and it does not appear that the attention of the learned Judges was 548 drawn to the features of the injury on which we are now asked to hold that the shot which killed Gurudev Singh was fired from a very close range, not exceeding a few inches.
Even so, we have thought it proper to hear the Counsel on this question, ,.is in our view these features ought ordinarily to be taken into consideration in assessing the value of the evidence of the eye witnesses.
The doctor 's evidence shows: (1) that the wound caused was a roundish, wound 1 1/2"x 1 1/4" communicating with the right chest cavity; (2) that the wound was plugged with a cork wadding and card board disc of 12 bore cartridge; (3) that the right fourth and fifth ribs were blown off under the wound and also the right lung was punctured over an area 2 1/2"x 2" about in its middle lobe about its interior margin in the middle which was blown off, (4) that the woollen coat, which was on the body of the deceased, was bloodstained with a corresponding rent blackened charred; the shirt was also blood stained with a corresponding rent blackened.
The doctor gave the opinion that the distance from which the shot was fired might be three to four feet.
There was some cross examination of the doctor in the Committing Court but the correctness of this opinion was not challenged.
The doctor did not appear to give evidence before the Sessions Court.
His deposition as recorded by the Committing Court was treated as evidence in the Sessions Court under the provisions of s.509 of the Code of Criminal Procedure.
Turning first to the size of the wound it appears to us that far from supporting the theory of death having been caused by a contact shot it indicates that the shot was fired from about a yard away.
Speaking of ordinary shot guns, Sir Sidney Smith in his Forensic Medicine, 9th Edition; page 182 says : "At about a yard the charge of shot will enter as one mass,.
making a whole with irregular 549 edges about an inch in diameter." Major Sir Gerald Burrard in his Identification of firearms and Forenisic Ballistics says at P.73 : "It may be assumed for all practical purposes that if the diameter of the wound is an inch, or less, than the distance of the shot was 18 inches or under, irrespective of the gauge of the shotgun or the degree of choke.
Up to 2 feet there is very little difference in the spread between guns of various and different obokes, the hole at this distance being slightly over an inch in diameter.
At 3 feet the hole is nearly 1 1/2 inches in diameter, and the difference between the two extremes of boring, true cylinder and full choke, begins to be evident. ' In Lyon 's Medical Jurisprudence, 10th Edition, we find stated at p. 279 thus: "At a distance of 3 feet the shot mass begins to spread, the wound is an inch or slightly more in diameter.
" In Taylor 's Principles and practice of Medical Jurisprudence, 11th Edition, 'the matter is described thus at page 334: In the case of shot guns the distance from which the weapon was fired may be deduce d from the amount of scattering of the charge.
Up to about a yard the whole of the charge enters in a mass, producing a round hole about the size of the bore of the weapon. . .
In view of these authorities, it is reasonable to hold even without knowing whether the gun had an unchoked or a choked barrel that a roundish wound of 1 1 /2" x 1 1/4" would be caused if the gun is fired at a distance of about a yard.
We are unable to agree that the burning of the clothes as described by the doctor is any indication that the shot was fired from within a few inches.
Mr. Sethi has drawn our attention to the statement made in the several text books that whet the gun is fired from a distance of only a few inched; the wound would be surrounded by a zone of black ening and burning.
in the Present case no mark 550 of blackening or burning were noticed by the doctor on the skin round the wound or in the depths of the wound; but the rent in the woollen coat was found blackened and charged and the rent in the shirt blackened.
On this question it is important to mention the opinion as given in the Taylor 's Principle and Practice of Medical Jurisprudence, 10th Edition at p. 441 thus: "The amount or degree to which the clothes and body of a person may be burnt by the near discharge of firearms has given rise to a medico legal inquiry.
The facts in any given case can be determined only by experiments with the actual weapon used, and loaded as nearly as possible in the same manner as it was when used for the purpose which are being investigated.
It is impossible to state rules as to the precise distance from which it is possible to produce marks of burning, for this depends on the quantity and nature of the powder, the method of charging, and the nature of the weapon.
It is unusual, however, to get marks of burning beyond a yard or a yard and a half with a shot gun, or at more than half a yard with a revolver." According to this view therefore marks of burning may be found in the clothes or body of a person if the shot was fired at a distance of a yard or a yard and a half with a shot gun.
Even though this opinion is not reiterated in Taylor 's 11th Edition, it seems clear, in view of this opinion that the presence of the burning marks in the clothes cannot from a reasonable basis for holding that the gun was fired in this case from the close range of a few inches only.
It is necessary next to consider the fact that the cork was found lodged in the body.
Glaister 551 in Medical Jurisprudence and Texicology, 9th Edition at p. 265 says, while speaking of a shot fired close to the body surface up to a few inches that "the wad may be forced in the wound.
" It appeas to be clear that in a contact wound the wad is likely to enter the body.
But the authorities are not so clear to the maximum distance at which the wad may enter the body.
The nearest statement appears to be given by Sir Sidney Smith in his Forensic Medicine, 9th Edition at p. 182 thus : " 'the wads enter with the projectile in near discharges.
" Reading this statement in the light of the discussion in the previous paragraphs, it appears to us that a discharge up to yard has been considered by the learned author as a near discharge.
The fact that the wad was lodged in the wound appears therefore to be quite consistent with the shot having been fired from about a yard.
It remains to consider what the doctors has described as the "blowing off" of the ribs and a part of the right lung.
This description, if correctly given, indicates the entry of gas into the wound and that, it is true, ordinarily takes place only if the shot is fired within a few inches of the body, As we have already noticed however, the dimension of the wound itself is a clear indication that shot was fired at a distance of about a yard.
There is thus some apparent inconsistency between what is indicated by the size of the wound and what the doctors has described as "the blowing off" of the ribs and a par of the right lung.
As there is less likelihood of any mistake being made in the measurement of the wound than about the doctor 's view about the "blowing off" of the ribs.
, we are of opinion that what the doctor has described as "blowing off" is not a good reason for thinking that the shot was fired only a few inches off from the body.
552 On a consideration of all the features of the wound as described by the doctors together, we have come to the conclusion that the doctor 's opinion as given in his examination in chief, which was not challenged in cross examination before the Committing Magistrate, that the shot may have been fired about three to four feet away should be accepted as correct.
We find no reason therefore interfere with the assessment of evidence as made by the High Court and also with the order, of conviction and sentence passed by it.
The appeal is accordingly dismissed.
Appeal dismissed.

summary/full:
The appellant was tried and convicted for murder and sentenced to death.
Two eye witnesses testified that he shot and killed the deceased from a shop while the later was passing on a motor cycle.
The doctor who conducted the postmortem gave evidence that the shot might have been fired from a distance of three or four feet.
This evidence was not challenged in cross examination.
On appeal to the High Court the conviction and sentence were confirmed.
The appeal came up before the Supreme Court by way or special Ieave.
The main contention on behalf of the appellant was that the characteristic of the wound which would have shown that the deceased was shot from a distance of few inches and not from the distance stated by the witnesses were not taken into consideration by the High Court.
It was contended that if the High Court had considered these factors the credibility of the witnesses would have become doubtful.
Held, that the nature and features of the fatal wound should ordinarily be taken into consideration in assessing the 546 value of the evidence of the eye witnesses.
On consideration of all the features of the wound as described by the doctor the conclusion is reached that the doctor 's opinion, which was not challenged in cross examination, that the shot was fired from a distance of three to four feet is correct.


judgement:
Appeal No. 173 of 1956.
Appeal from the judgment and order dated November 15, 1954, of the former Madhya Pradesh High Court at Gwalior in C. F. A. No. 9 of 1951.
Ganpat Rai, for the appellant.
N. section Bindra and D. D. Sharma for the respondent.
621 1962.
April 30.
The Judgment of the Court was delivered by KAPUR, J.
This is an appeal against the judgment and order of the High Court of Madhya Bharat at Gwalior on a certificate of that Court under article 133 (1) (c) and like Civil Appeal No. 24 of 1961, raised the question of the applicability of the Indian Code of Civil Procedure and the question whether the decree sought to be executed was a dec ree of a foreign Court or not.
It is a reverse case in the sense that the decree sought to be executed was passed by a Court in West Bedford province of what was British India.
In the appeal the appellant is the judgment debtor and the decree holder is the respondent.
On December 3, 1949, a decree was passed in favour of the respondent by the Subordinate Judge, Bankura, in the West Bengal and a certificate of transfer was applied for on July 27, 1950, granted on August 8, 1950, and was transferred for execution On August 28, 1950.
On September 25, 1950, the decree holder took out execution in the Court of the Additional District Judge, Morena, in what was Gwalior State and subsequently became a part of the United State named Madhya Bharat and after the Constitution the Part B State of Madhya Bharat.
On the judgment debtor 's objection the application for execution was dismissed on December 29, 1950, but the appeal against that order was allowed by the High Court on November 15, 1954.
It is unnecessary to set out the various sections of the Indian Code of Civil Procedure or to trace the various steps by which as.
43 and 44 were amended in that Code ; that we have done in C. A. No. 24 of 1960 decided today.
It was contended before us by the judgment debtor that 622 the Court had no power to transfer the decree under section 38 to the Court in Morena.
On the date when the decree was transferred the Courts in Madhya Bharat were governed by the Indian Code of Civil Procedure as adapted by the Madhya Bharat Adaptation Order of 1948 but the power of transfer by the Court at Bankura was governed by sections 38 and 39 of the Indian Code of Civil Procedure.
Under the Code, the Court to which the decree could be transferred was one established in what was British India because the Code extended to the territories of what was British India and it was not till, the coming into force of Act 11 of 1951 on April 1, 1951, that the Indian Code was applied to the "Territories of India" which comprised Parts A, B and C State.
It was contended by Mr. N. section Bindra counsel for the respondent that under sections 38 and 39 of the Indian Code of Civil Procedure a decree could be sent for execution to any Court, the expression "Court" being understood as a place where justice was administered and for this reliance was placed on Manawala Goundan vs Kumarappa Reddy (1) where the word "Court" in section 622 of the old Civil Procedure was defined as a place where justice is judicially administered ; but that was in a case where it had to be determined whether a District Registrar was Court for the purpose of Civil Procedure Code.
The definition as given in that case is not of any help in determining the question now before us because what we have to see is whether the Court at Morena even though it administered justice judicially was covered by the word "Court" in section 38 or not.
As we have said above "Court" in the section means a court to which the Indian Code of Civil Procedure applies and not any Court.
Similarly at the relevant time in es. 40 and 42 of the Indian Code of Civil Procedure "Court" nece I. L. R. 30 mad.
623 ssarily meant a Court to which Indian Civil Procedure Code applied i. e., a Court in what was British India.
The Court at Morena not being such a Court the decree could not be transferred to it under the Indian Code of Civil Procedure and sections 38 and 39 were inapplicable to justify such a transfer.
The decree, it was then argued, was executable under section 43 of the Indian Civil Procedure Code as amended by the Adaptation of Laws Order of June 5, 1950, which had retrospective effect as from January 26, 1950.
After the amendment that section reads : "S 43 Any decree passed (a) by a Civil Court in Part B State, or (b). . . . (c). . . . may, if it cannot be executed within the jurisdiction of the Court by which it was passed, be executed in manner herein provided within the jurisdiction of any Court in the States".
The argument was that in the present case the expression "in a Part B State, 'should be read as if the expression was "in a Part A State".
This again is not permissible for us.
Section 43 has to be interpreted as it is and a Court cannot read it as if its language was different from what it actually is.
It is not permissible for this court to amend the law as suggested.
Besides the Indian Civil Procedure Code was not extended to Madhya Bharat till April 1, 1951, by Act 11 of 1951.
The decrees of foreign courts were, under the Gwalior Code of which Morena was a part, executable neither under section 233 which required a suit to be brought on the basis of foreign decrees nor under the Madhya 624 Bharat Code of Civil Procedure.
The decree therefore could not be executed in Morena under s.43 of the Indian Code of Civil Procedure.
It was next argued that the appellant firm was not a foreigner because it did not fall under the foreigners Act (Act 31 of 1946) and reference was made to section 2 (a.) (iii) which was amended by Act 38 of 1947 on December 15, 1947 ; but this Act is not relevant for the purpose of finding out whether the decree was a foreign decree or not because the execution of decrees is governed by the provisions of the Code of Civil Procedure and not by the Foreigners Act.
Under the former a decree can be executed by a Court which passed the decree or to which it was transferred for execution and the decree which could be transferred has to be a decree passed under the Code and the Court to which it could be transferred has to be a Court which was governed by the Indian Code of Civil Procedure.
But in the present case it was not transferred to a Court which at the time of the transfer was governed by the Indian Code of Civil ,Procedure and therefore the transfer was ineffective for the purpose of execution and as we have said above, section 43 of the Indian Code was inapplicable before Act 11 of 1951 to the State of Madhya Bharat.
It is not necessary to go into the other questions raised if the above two questions are decided against the respondent.
We therefore allow this appeal, set aside the judgment and order of the High Court and restore that of the executing court.
The appellant will have its costs in the court.
Appeal allowed.

dataset_name: IN-Abs

summary/full:
A decree passed in favour of the respondent by a Subordinate judge of West Bengal was transferred for execution on August 28, 1950 to the Court of the Additional District judge of Morena in what was originally Gwalior State and subsequently became a part of the United States of Madhya Bharat and after the Constitution State of Madhya Bharat.
On the date when the decree was transferred, the 620 Courts in Madhya Bharat were governed by the Indian Code of Civil Procedure as adapted by the Madhya Bharat Adapt action Order of 1948 but the power of transfer by the Court of Bankura was governed by sections 38 and 39 of the Indian Code of Civil Procedure.
On the judgment debtor 's objection the application for execution was dismissed but the appeal against that order was allowed by the High Court.
The appellant contended that the Court had no power to transfer the decree under section 38 to the Court in Morena.
The question was with regard to the applicability of the Indian Code of Civil Procedure and whether the decree sought to be executed was a decree of a foreign Court or not.
Held, that the Court at Morena not being a court, to which Indian Civil Procedure Code applied, the decree could not be transferred to it under the Indian Code of Procedure and sections 38 and 39 were inapplicable to justify such a transfer.
The Indian Civil Procedure Code was not extended to Madhya Bharat till April 1, 1951, by the Act 2 of 1951.
The decrees of foreign courts were under the Gwalior Court of which Morena was a part, not executable under section 233 which required a suit to be brought on the basis of foreign decree under not the Madhya Bharat Court of Civil Procedure.
Held, further, that the Foreigners Act is not relevant for the purpose of finding out whether the decree was a foreign decree or not because the execution of decree is governed by the provisions of the Code of Civil Procedure and not by Foreigners Act.
A section of an enactment has to be interpreted as it is and a Court cannot read it as if its language was different from what it actually is.


judgement:
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 T.V.R. Patachar for the appellant.
Bhimsenakarama and B K.B. 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 C.J. 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) I.R.L. , 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 C.J. 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) (1920)I.L.R.44 Bom.574,581.
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 Kanakayya(1) that, "Rule 7 deals with the conduct of a next friend ' as such who, as pointed out in Bhodes vs Swithenbank(2) 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) I.I.R. Mad. 819,828.
(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 case(1).
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 Mitter(1).
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.
J.SUBBA '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 C.S. 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) L.R. 70 I.A. 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 E.A. 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, O.S. 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 th%t 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 Basappa(1), Arunachellam Chetty vs Ramanadhan Chetty(2), and Muthalakkammal Chetty vs Narappa Reddiar(3).
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 Mitter(4).
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. 110.(2) Mad. 309.
(3) Mad. 430.(4) (1949) L.R. 70 I.A. 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 Kanakayya(1), 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 party.to 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) I.L.R. 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] L.R. 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/full:
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 O.32, r : 7 Code of Civil Procedure before entering into the compromise.
Held, (per Suhba Rao and Mudholkar, jj., Sarkar, J. contra) the O.32, r.7 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 O.32, r.7 was not necessary.
Section 141 of the Code 500 could not be utilised to, make O.32, r.7 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) I.L.R. , Jitendra Nath Roy vs Samarendra Nath Mitter (1943) L.R. 70 I.A. 68, Katneni Venkatakrishnayya vs Garapati China Kanakayya, I.L.R. and Thakur Prasad vs Sheikh Fakir Ullah, (1894) L.R. 22 I.A. 44, referred to.
Per Sarkar, J.
The leave of the court under O.32, 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, (1901)1.L.R. Rhodes vs Swithenbank, (1889) L. R. , Gurmallappa vs Mallappa, Bom.
574 and Katneni Venkatakrishnayya vs Ganapati China Kanakayya, (1938) I.L.R. Mad. 819, referred to.