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Keshav Ramkrishna Bhatt Phadke Vs. Subba Manga Naik - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberCivil Revision Application No. 353 of 1938
Judge
Reported inAIR1939Bom490; (1939)41BOMLR994
AppellantKeshav Ramkrishna Bhatt Phadke
RespondentSubba Manga Naik
Excerpt:
.....with the opposite party and settle the terms of a compromise, but merely authorises him to sign the compromise, application to be presented to the court, the compromise arrived at, without the consent of the party, and which results in the decree, is unauthorised,;basangowda v. churchigirigowda (1910) i.l.r. 34 bom. 408 : s.c. 12 bom. l.r. 233 and thenal ammal v. sokkammal (1917) i.l.r. 41 mad. 233, referred' to. - - it is, therefore, urged that the proper remedy in a case like this is an application to the court to correct its own record in the exercise of its inherent powers under section 151 of the civil procedure code. 233): it is well settled that a consent decree is a ere creature of the agreement on which it is founded, and may be set aside on any ground which will..........possession of certain property which had been purchased by him for rs. 51. in the course of the suit a compromise application, exhibit 38, was put in, whereby it was agreed that the plaintiff should give up his claim on being paid rs. 51 within three months. the application was signed by his pleader mr. nadkaini, and just above his signature he made a note 'duly authorised by plaintiff.' a decree was then ordered to be drawn up in terms of the compromise on october 5, 1935. the plaintiff presented this application on november 21, 1936, stating that he had not authorised his pleader, mr. nadkarni, to enter into a compromise with the defendants, or to present the compromise application, and requesting that the consent decree should be set aside and the suit should be re-heard.2. the.....
Judgment:

Lokur, J.

1. This is an application in revision against the order passed by the First Class Subordinate Judge of Karwar refusing to set aside the consent decree in suit No. 221 of 1932, on the ground that the compromise application had been presented by the petitioner's pleader without any authority from him and without consulting him. The petitioner was the plaintiff in the suit. He sued for possession of certain property which had been purchased by him for Rs. 51. In the course of the suit a compromise application, exhibit 38, was put in, whereby it was agreed that the plaintiff should give up his claim on being paid Rs. 51 within three months. The application was signed by his pleader Mr. Nadkaini, and just above his signature he made a note 'duly authorised by plaintiff.' A decree was then ordered to be drawn up in terms of the compromise on October 5, 1935. The plaintiff presented this application on November 21, 1936, stating that he had not authorised his pleader, Mr. Nadkarni, to enter into a compromise with the defendants, or to present the compromise application, and requesting that the consent decree should be set aside and the suit should be re-heard.

2. The lower Court found from the vakalatnama given by the plaintiff to Mr. Nadkarni that the latter had been authorised 'to sign a compromise petition.' The lower Court Interpreted this clause to mean that Mr. Nadkarni was authorised to effect a compromise, and present a compromise application in the suit, and, therefore, following the ruling in Yusuf Isnudlbhai v. Abdulla-bhai Lalji I.L.R. (1931) 56 Bom. 231 the lower Court held that, if any fraud had been practised by the pleader on the plaintiff, the latter's remedy was by way of a suit and not an application to have the consent decree set aside.

3. The plaintiff contended in the application that the clause authorising Mr. Nadkarni to sign a compromise application was not specifically brought to his notice, and that it was one of the many clauses in the vakalatnama which he signed without knowing what those clauses were. The lower Court, however, thought that these matters should be agitated in a suit, as the plaintiff virtually alleged fraud practised by his pleader on him, and not any fraud practised on the Court.

4. The plaintiff relied on the ruling in Basangowda v. Churchigirigowda I.L.R. (1910) 34 Bom. 408 which lays down that when a compromise application is filed by a pleader, who is not specifically authorised to effect a compromise, and a decree is passed in terms of the compromise, the party who has not authorised it can apply to the Court to have the decree set aside and the suit re-heard. In that case the vakalatnama did not show that the pleader had been authorised either to enter into a compromise or to present a compromise application in Court, and it was held that it was the inherent power of every Court to correct its own proceedings where it had been misled, and, as the compromise was not binding on the party who had not authorised the pleader to sign it, the decree was void against him. It is, therefore, urged that the proper remedy in a case like this is an application to the Court to correct its own record in the exercise of its inherent powers under Section 151 of the Civil Procedure Code. The lower Court, however, thought that the terms in the vakalatnama empowering the pleader to put in a compromise application were sufficient to enable the Court to assume that the pleader had been authorised also to negotiate and settle the terms of the compromise. Thus there was no fraud on the Court, but the fraud, if any, was committed by the pleader on his client. This matter could not be gone into in an application under Section 151 of the Civil Procedure Code, but must be fought out by a separate suit. That was the view expressed in Yusuf Ismailbhai v. Abdullabhai Lalji. B.J. Wadia J., observed (p. 233):

It is well settled that a consent decree is a ere creature of the agreement on which it is founded, and may be set aside on any ground which will invalidate an agreement between the parties, such as misrepresentation, fraud or mistake. But unless all the parties agree, an application cannot be made to the Court of first instance in the original suit to set aside the consent decree; it must be done by a fresh suit brought for the purpose.

It was brought to my notice that this case was on the original side of the High Court, but I do not think that that makes any difference. If a decree is sought to be set aside on the ground of fraud, misrepresentation or mistake, then several complicated questions would arise and they have to be decided in a separate suit. If on the face of the record the compromise decree is proper, then the Court which passed the decree cannot set it aside in an application under Section 151 of the Civil Procedure Code.

5. In this case the lower Court has not recorded1 a finding that Mr. Nadkarmi was authorised by the plaintiff to enter into a compromise. The vakalatnama given to him does not give any specific authority to negotiate with the defendants and settle the terms of the compromise, but merely to sign the compromise application to be presented in Court. As observed in Thenal Ammal v. Sakkammal I.L.R. (1977) Mad. 233it is not the ordinary duty of an advocate to negotiate terms, without reference to his client, with the opposite party', and in that case it was held that a vakalatnama containing a provision authorising the Vakil 'to present, if necessary, petitions for razinama, for withdrawal and for referring to arbitration, and to sign the razinama, etc., petitions,' does not give authority to the Vakil to enter into a compromise without reference to his clients. Mr. Nadkarni signed the compromise application, exhibit 38, in his capacity as plaintiff's pleader, and expressly wrote out above his signature that he had been duly authorised by the plaintiff. It is not dear whether he was authorised merely to sign the compromise application or authorised to negotiate the terms of the compromise. It is not clear also whether this particular application, exhibit 38, had ever been shown to the plaintiff, and his consent to its being presented in Court had been obtained. If no such consent was obtained, and if Mr. Nadkarni had not been specifically authorised by the plaintiff to negotiate the terms of the compromise with the defendants, then it follows on the principle laid down in Basangowda v. Churchigirigowda that the compromise which resulted in the decree was unauthorised. But these questions have not been gone into, and no finding has been recorded, for the simple reason that the vakalatnama itself showed that Mr. Nad-karai had been authorised to sign the compromise application. The mere authority to sign the compromise application is not sufficient unless the compromise was arrived at by the plaintiff himself. It is, therefore, necessary to have these points decided before the plaintiff's application can be disposed of The trial Court summarily dismissed the application merely on a reference to the contents of the vakalatnama, without ascertaining whether the compromise itself was duly authorised by the plaintiff.

6. The case must, therefore, be remanded for a fresh disposal after considering the issues whether the compromise contained in exhibit 38 was effected by the plaintiff, and, if not, whether he had authorised his pleader Mr. Nadkarni to effect the compromise without reference to him. If these issues be found in favour of the defendants, the application will necessarily have to be thrown out, and if in that case the plaintiff wants to have the decree set aside on the ground of fraud or misrepresentation, he should be referred to a separate suit. On this ground the rule is made absolute. The costs of this application will be costs in the cause.


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