Mt. Taja vs Mst. Azizi

Shyam Krishna Dar, Member

This is an appeal against an order of the High Court dated Har 16, 2008, by which it refused to set aside a compromise which it had recorded

on Katik 14, 2007, in an appeal pending before it.

In the appeal in which the compromise was recorded respondent 1 was the appellant, and the appellant and respondent 2 to this appeal were

respondents 1 and 2. On Har 20th 2007 an application was made by respondent 1 to this appeal for recording of a compromise-which was

arrived at between the parties to that appeal. On this application the High Court ordered an enquiry to be made by the District Judge of Srinagar,

who by his report dated Bhadon 17, found in favour of the factum of the compromise and thereafter on Katik 14, 2007, the High Court recorded

a compromise and disposed of the appeal in its terms.

At the time when the compromise was recorded the appellant was a minor but no proceedings were taken under Order 32 Rule 7, CPC to

obtain leave of the Court for the compromise. By an accidental oversight it was overlooked that one of the parties to the compromise was a minor

and the compromise in which a minor is a party cannot be recorded without the leave of the Court and unless it is in the interest and for the benefit

of the minor.

Soon after on Maghar 8, 2007, a joint application was made u/s 151 of C.P. Code by the appellant and respondent 2 to this appeal to the High

Court to set aside the compromise and one of the grounds taken in this application was that the appellant was a minor and no leave was taken of

the Court for making of the compromise and that it contravened the provisions of Order 32, Rule 7, Civil Procedure Code.

The High Court has rejected this petition on the ground that as between respondent 1 and respondents, who are sui juris, the compromise is

binding and though it is voidable between the appellant and respondents 1 and 2, the appellant's remedy is by way of suit or by way of an

application for review of the order and not by an application u/s 151, CPC which application is misconceived, and cannot be converted into an

application for review.

The only question for the consideration of the Board in this appeal is whether in the circumstances of the case the application for setting aside the

compromise could be treated as an application for review. The High Court has refused to do so because the application in terms is u/s 151, CPC

and it also does not comply with formalities required by Order 47, Rule 1 Civil Procedure Code

The question whether an application made u/s 151, CPC could or could not be converted into an application for review under Order 47, Rule 1

of the Code depends upon the circumstance of each case. In this case the order recording the compromise is obviously erroneous as it

contravenes the provisions of Order 32, Rule 7 of the Code. The application to set aside the compromise was made within one month of the order

recording the compromise in other words within the period of limitation allowed for an application for review. Order 47, Rule 1, CPC is wide

enough in its terms to cover a case of correction of the error of this description and the only impediment in treating this application as an application

for review is the lack of payment of necessary court-fee, which can be demanded and made good at any stage of the proceedings.

By entertaining the review at this stage and in these proceedings and in setting aside the order of recording of compromise there is an additional

advantage that the High Court can start the case again from the stage when the Report of the District Judge had been received and it can come to a

decision whether the compromise is for the benefit of minor or not and whether it is a lawful compromise which can or should be recorded and

according as it comes to one conclusion or the other it can dispose of the case in terms of the compromise or on merits. And this course if adopted

will save the multiplicity of proceedings and lead to a speedy determination of controversy.

The Board will, therefore, humbly advise the Sadar-i-Riyasat that subject to the payment of necessary court-fee by the appellant the application

dated Maghar 8, 2007 be treated as an application for review and this appeal be allowed and the orders of the High Court dated Katik 14, 2007

& dated Har 16, 2008 be set aside and that the case be remanded to High Court with the direction that it be restored to its original number and be

disposed of according to law and the directions given above. The costs of this appeal as also other costs will be in the discretion of the High Court.