Bagher Singh and Another vs Teja Singh and Others

R.N. Mittal, J.—This execution second appeal has been filed by the judgment debtors against the judgment of the Additional District Judge, Barnala, dated August 13, 1973, by which he affirmed the judgment of the executing Court dismissing the objections of the judgment-debtors.

Briefly stated, the facts leading to the present controversy are that a suit for possession by pre-emption in respect of 16 kanals 11 marlas of land was instituted by Teja Singh against Joginder Singh, Maghar Singh and Ujagar Singh. A decree for possession was passed against them by the trial Court on March 29, 1969, on payment of Rs. 3,630/-. Joginder Singh et cetera vendees went up in appeal against that decree. During the pendency of the appeal, a compromise was arrived at between the parties on January 1, 1971, Teja Singh pre-emptor admitted before the appellate Court that two of the vendees were minors. Joginder Singh, who was the real brother of the minors and had filed appeal on their behalf, sought permission of the Court to enter into the compromise in the appeal on behalf of the minors. The appellate Court granted him the requisite permission. He made a statement on his own behalf and on behalf of the minors that the decree of the trial Court be modified and decree for possession be passed in favour of Teja Singh on payment of Rs. 6,430/-, as the price of the land. The decree of the trial Court was amended by the appellate Court accordingly. It ordered that an additional amount of Rs. 1,800/- be deposited on or before June 15, 1971. He deposited the amount before that date.

An execution was taken out by Teja Singh in terms of the (sic)ecree. The judgment-debtors filed objections against the decree (sic)ating that Ujagar Singh and Maghar Singh were minors, and that (sic) trial Court no guardian ad litem was appointed for them. They (sic)eged that the decree of the trial Court was, therefore, a nullity, They (sic)hey further stated that the decree being a nullity could not be (sic)odified by the appellate Court and executed. The decree-holder (sic)ontested the objection petition. On the pleadings of the parties, (sic)e Court framed the following issues:

(1) Whether objectors-judgment-debtors are estopped by their act and conduct to file the present objection petition ?

(2) Whether the decree is inexecutable as alleged ?

The executing Court decided both the issues against the judgment-debtors and dismissed their objections. An appeal by them against that judgment was also dismissed. They have come up in Execution second appeal to this Court.

The first contention of the learned Counsel for the Appellants (sic) that the decree as passed by the trial Court was a nullity as two (sic) the Defendants, who were minors, were not sued through a guardian. He further submits that consequently the decree passed in Appeal by the appellate Court would also be a nullity. I have given thoughtful consideration to the contention of the learned Counsel for the Appellants, but regret my inability to accept it. No doubt, decree passed against a minor when he is not represented properly in Court by a guardian ad litem is a nullity and not binding on him. But as soon as appeal is Pled against that decree, it again becomes (sic)Subject-matter of appeal. In case, a minor is properly represented (sic)by his guardian ad litem in appeal, it becomes a valid appeal. After the decision of the appeal, the decree of the trial Court merges in he decree of the appellate Court and loses its existence. In appeal, (sic)ll objections against the decree can be taken before the appellate Court which has got the power to reverse, modify or affirm the same, in case, the appellate Court affirms or modifies or reverses the decree, it is that decree, which is executable and not that of the trial Court. In this view, I am fortified by the observations of their Lordships of the Supreme Court in Collector of Customs, Calcutta v. East India Commercial Company Limited, Calcutta and Ors. AIR 1963 SC 1124 wherein it was observed that,--.

When an appeal is made, the appellate authority can do of the three things, namely, (i) it may reverse the (sic)ord under appeal, (ii) it may modify that order, and (iii) may merely dismiss the appeal and thus confirm the ord without any modification. In all these three cases, aft the appellate authority has disposed of the appeal, the operative order is the order of the appellate authority whether it has reversed the original order or modified it confirmed it. In law, the appellate order of confirmatic is quite as efficacious as an operative order as an appella order of reversal or modification.

These observations also apply to an appeal in which a mine is a party. He cannot challenge the decree of the appellate Court subsequently on the ground that he was not represented by a prop� guardian in the suit and, therefore, the decree was a nullity, provide he was properly represented in appeal. In the present case, the minor Appellants filed the appeal through their brother. The brother entered into a compr6mise on his own behalf and on the behalf with the permission of the Court. The decree of the trial Court was modified in view of the compromise. In the aforesa(sic) situation, it cannot be held that the minors were not properly repr sented in appeal. In case, they were properly represented, the decree of the appellate Court in which the decree of the trial Court hi merged is binding on them.

Learned Counsel for the Appellants has placed reliance Radhakishan Laxminarain v. Bhagwandas AIR 1935 Nagpur 235, wherein it has bee held that the dismissal of an appeal preferred by the minor against a decree which was nullity against him, cannot have the effect validating the decree of the Court. In view of the observations of the Supreme Court in the above mentioned case, with due respect the learned Judicial Commissioners, I am unable to contribute the view expressed by them. In the aforesaid circumstances, the decree of the appellate Court cannot be held to be a nullity.

The next contention of the learned Counsel for the Appellants is that the minors are not estopped from challenging the vali(sic)y of the decree by their conduct. In this case, as already stated, e minors were properly represented in appeal. The permission of 3 Court for compromise was also obtained by the guardian, who is their real brother. It is true that if a minor enters into a con-ct by making a false representation, he is not stopped from chal(sic)ging his liability under that contract. In case a representation made by a properly constituted guardian on behalf of the minor, minor is bound by that representation. For the aforesaid view jet support from a Division Bench decision of the Allahabad High Court in Lal Somnath Singh and Ors. v. Ambika Prasad Dube and Ors. AIR 1950 All 121. It is held in that case by the learned Bench:

A representation made by an infant is not allowed to operate against him as an estoppel, where the estoppel, if allowed, would have the effect of depriving him of the protection against liability on his contract.

is further observed,-

Where the representation was made on behalf of the infant by his guardian or next friend or other person legally competent to bind him by such a representation, the infant on attaining his majority or the person so making the representation on his behalf until that event, as the case may be, is liable to be estopped thereby.

(sic)am respectfully in agreement with the aforesaid observations. A person under disability at the time of suit to which he is a party, presented by his guardian is bound by the acts of his guardian. A figment rendered in such a case cannot be avoided by him except on such grounds on which it can be questioned by a party sui. Hs; i.e., for fraud, collusion, etc. After taking into consideration above-said facts, I am of the opinion that the minor-Appellants estopped from challenging the validity of the decree of the Appellant Court which was passed in the presence of the guardian, ad litem d with the permission of the Court.

For the reasons recorded above, I dismiss the appeal with (sic)sts. Counsel''s fee Rs. 100.00.