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Piraji Laxman Mali Vs. Ganpati Ramji Mali - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case Number First Appeal No. 48 of 1909
Judge
Reported in(1910)12BOMLR378
AppellantPiraji Laxman Mali
RespondentGanpati Ramji Mali
DispositionAppeal dismissed
Excerpt:
.....in any other section of the dekkban agriculturists' belief act 1879 which expressly deprives the parties to a suit of the power of entering into a compromise and having that compromise recorded under section 375 of the civil procedure code of 1884 or order xxiii, rule 3 of the civil procedure code of 1908.;a compromise means the settlement of a disputed, not an admitted, claim.;where a party complains that a compromise effected in his name by his pleader was unauthorized he must move the court and ask the court by independent proceedings to cancel all that has been done or to revive the suit.;basangonda v. ckurchigirigowda (1910) 12 bom. l.r. 223 followed. - maharashtra scheduled castes, scheduled tribes, de-notified tribes (vimukta jatis), nomadic tribes, other backward classes and..........the last mortgage, and that that was for interest due on the previous amounts. the plaintiff claimed relief in the suit as an agriculturist under the dekkhan agriculturists' relief act. the respondent pleaded that all the mortgages were for cash advances. the suit was fixed for disposal for the 20th of november 1908. on that date the parties appearing by their pleaders asked for and obtained an adjournment upon the ground that they were going to effect a compromise. on the day fixed they appeared again and put in a compromise embodying certain terms except as to interest and costs, and the court was asked to pass a decree in terms of the compromise, and also to give its own direction on the question of interest and as to costs. accordingly the subordinate judge who heard the suit.....
Judgment:

N.G. Chandavarkar, J.

1. The suit was brought by the appellant to redeem certain mortgages. The plaintiff alleged that the amounts of the mortgages were for past debts except the last mortgage, and that that was for interest due on the previous amounts. The plaintiff claimed relief in the suit as an agriculturist under the Dekkhan Agriculturists' Relief Act. The respondent pleaded that all the mortgages were for cash advances. The suit was fixed for disposal for the 20th of November 1908. On that date the parties appearing by their pleaders asked for and obtained an adjournment upon the ground that they were going to effect a compromise. On the day fixed they appeared again and put in a compromise embodying certain terms except as to interest and costs, and the Court was asked to pass a decree in terms of the compromise, and also to give its own direction on the question of interest and as to costs. Accordingly the Subordinate Judge who heard the suit passed a decree in accordance with the compromise, and also gave certain directions on the question of interest and costs.

2. That decree has been appealed from. It is contended, ,in the first place, that such a compromise as the parties entered into could not be recognized by the Court, having regard to the provisions of the Dekkhan Agriculturists' Relief Act, and section 12 is relied upon. No doubt, under the latter part of that section, if the amount of the claim is admitted, and the Court, for reasons to be recorded by it in writing, believes that the admission is true and was made by the debtor with full knowledge of his legal rights as against the creditor, the Court is not bound to take an account directed by the previous provisions of the section. But the portion of the section which is relied upon by the appellant applies where the debtor appearing before the Court to answer the creditor's claim admits it. That is different from a compromise. There is nothing in the language of Section 12 or in any other section of the Act which expressly deprives the parties to a suit of the power of entering into a compromise and having that compromise recorded under Section 375 of the old Civil Procedure Code which is the same as Order XXIII, Rule 3 of the Code now in force. Here it cannot be said that it was a case of a mere admission by the defendant of the claim. What the Court was asked to do was, not to pass a decree on any admission of the defendant, but to make one in terms of the compromise which after trial commenced had been deliberately entered into by the parties. A compromise means the settlement of a disputed, not an admitted, claim. This view is sup. ported by a decision of this Court in Gangadhar Sakharam v. Mahadu Santaji ILR (1883) 8 Bom. 20, where it was said: 'If a creditor and debtor cannot define their mutual relations by the mediation of persons in whom they have confidence, still less should they be allowed to do so unaided, and thus the settlement of accounts would be no settlement unless made by a Court. The foundation would thus be laid for universal litigation, but this is so generally disapproved that it cannot without an express declaration be supposed to have formed a part of the policy of the legislature in this particular instance.' And then the Court went on to observe that ' the Code of Civil Procedure and the Dekkhan Agriculturists' Relief Act, being within the territorial range of the latter, Statutes in pari materia must be construed together so as to give effect so as possible to the provisions of each.'

3. That decision has remained undisturbed and unquestioned as law. There have been several amendments of the Act since this decision was reported, and yet the legislature has left it untouched.

4. It was next argued, however, that this compromise had not been consented to by the appellant; that what was put in was merely a purshis of his pleader and that the pleader had no authority express or implied to give such a consent. But, as was held by this Court in a recent case, Basangowda v. Churchi, girigowda (1) where a party complains that a compromise effected in his name by his pleader was unauthorized, he must move the Court to cancel all that has been done and to revive the suit. Here no steps for that purpose, as required by law-have been taken and we are asked to set aside the compromise on a ground raised for the first time before us while we are concerned with only an appeal. The lower Court was not asked to determine whether it has been misled in the way that it is said to have been in consequence of the alleged want of authority in the appellant's pleader to effect the compromise.

5. On the question of interest, it is entirely a matter of discretion and we do not think there is any reason in law or equity to interfere with the Court's award. The decree is confirmed with costs, without prejudice to the right, if any, of the appellant to have the compromise set aside on the ground of fraud.


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