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PETITIONER: DOKKU BHUSHAYYA

       Vs.

RESPONDENT: KATRAGADDA RAMAKRISHNAYYA

DATE OF JUDGMENT: 27/04/1962

BENCH: SARKAR, A.K. BENCH: SARKAR, A.K. SUBBARAO, K. MUDHOLKAR, J.R.

CITATION:  1962 AIR 1886            1963 SCR  (2) 499

ACT: Civil  Procedure-Decree  against minor-Execution  and  sale- Application  for setting aside sale-Compromise by  guardian- Leave of Court not obtained-Whether binding on minor-Code of Civil Procedure, 1908 (Act V of 1908), s. 14, O. 32, r. 7.

HEADNOTE: 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guardian entered into a compromise with the decree hold- er and the auction purchaser under which the application was withdrawn.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

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agreement in question. as s. 141 was applicable to  original proceedings and not to proceedings in execution. Virupakshappa v.Shidappa and basappa. (1901) I.L.R. 26  Bom. 110, Arunachellam Chetty v. Ramanadhan Chetty, (1906)  I.L.R 29 Mad. 309 Muthalakkammal v. Narappa Reddier, (1933) I.L.R. 56  Mad.  430, Jitendra Nath Roy v. Samarendra  Nath  Mitter (1943)  L.R.  70  I.A.  68,  Katneni  Venkatakrishnayya   v. Garapati China Kanakayya, I.L.R. (1938) Mad. 819 and  Thakur Prasad  v.  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  v. Shidappa, (1901)1.L.R. 26 Bom. 109  Rhodes v. Swithenbank, (1889) L. R. 22 Q. B. D. 577, Gurmallappa v. Mallappa,   (1920)   I.  L.R.  44  Bom.  574   and   Katneni Venkatakrishnayya v. Ganapati China Kanakayya, (1938) I.L.R. Mad. 819, referred to.

JUDGMENT: CIVIL  APPELLATE  JURISDICTION: Civil 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

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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 s. 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  v. 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. 26 Bom. 109, 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 v. 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

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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 s.     462 of the Code of 1882 he observed in Gurmallapa v.    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)  (1889) L.R. 22.  Q.B.D. 577,578. (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  v.  Ganapati China Kanakayya(1) that, "Rule 7 deals with the conduct of a next  friend’  as  such who, as pointed  out  in  Bhodes  v. 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)  (1889) L.R. 22 Q.B.D. 577,578                             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

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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)  (1901) I.L.R 26 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 v. 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

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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

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             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 s.  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

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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 v.  Shidappa  and Basappa(1), Arunachellam Chetty v. Ramanadhan Chetty(2), and Muthalakkammal  Chetty v. 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 v. 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)  (1901)  I.L.R.  26 Bom. 110.(2) (1906) I.L.R.  29  Mad. 309. (3)  (1939)  I.L.R. 56 Mad. 430.(4) (1949) L.R. 70 I.A.  68. 72. 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

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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. 1938 Mad. 814.                             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

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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 s.  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 v. Sheikh FakirUllah (1), wherein it observed :               "It is not suggested that s. 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 s. 647 (s.  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,  s. 141 of the Code will not apply for two reasons, namely,  (1) as  execution proceedings were continuation of  suit  within

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the  meaning  of Order XXXII, r. 7 of the Code, and  as  the Code  provided specifically for suits, s. 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  s. 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.                             517