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Hutcheeregowda and ors. Vs. Sanjeevagowda and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKarnataka High Court
Decided On
Case NumberSecond Appeal No. 14 of 1952-53
Judge
Reported inAIR1954Kant167; AIR1954Mys167
ActsCode of Civil Procedure (CPC), 1908 - Order 3, Rule 4
AppellantHutcheeregowda and ors.
RespondentSanjeevagowda and ors.
Advocates:G. Dayananda, Adv.
Excerpt:
.....express written authority, such as a vakalatnama, different considerations may well arise, and in such cases their lordships express no opinion as to the existence of any implied authority of any kind under discussion......the properties made by their father was not binding on their interests. during the progress of the suit, a compromise was entered into under the terms of which the defendants obtained certain portions of the properties involved in that suit. the compromise petition was signed by defendant 4 who was present in court and the lawyer (mr. h. narayana rao) who was appearing for all the defendants in that suit figned on their behalf. the ground upon which the suit is filed is that the compromise was entered into without the knowledge of the plaintiffs and that it was the result of fraud on the part of the lawyer in collusion with defendant 4. it has been found by the courts below that there was no proof of either collusion or fraud on the part of the lawyer and that the com promise entered.....
Judgment:

1. The suit from which this appeal arises was filed to repel the terms of a compromise entered in O. S. 333/46-47 and to declare the decree passed therein as null and void. The trial Court dismissed the suit and the said decision was confirmed in the first appeal.

2. O. S. 333/46-47 was filed by defendants 1 to 3 of this suit, against the plaintiff and defendant 4 (pro forma) for declaration that the alienation of the properties made by their father was not binding on their interests. During the progress of the suit, a compromise was entered into under the terms of which the defendants Obtained certain portions of the properties involved in that suit. The compromise petition was signed by defendant 4 who was present in Court and the lawyer (Mr. H. Narayana Rao) who was appearing for all the defendants in that suit figned on their behalf. The ground upon which the suit is filed is that the compromise was entered into without the knowledge of the plaintiffs and that it was the result of fraud on the part of the lawyer in collusion with defendant 4. It has been found by the Courts below that there was no proof of either collusion or fraud on the part of the lawyer and that the com promise entered into was bona fide and in pursuance of the authorisation contained in the vakalatnama (the kanada version translated) to the effect that 'we have hereby given full powers to agree to compromise on our behalf in the case.' The appellants are thus concluded by the concurrent findings of fact and no interference is called for.

3. A point touching the validity of, and impeaching the power of the Advocate to enter into, the compromise, is raised. It is argued for the appellants that the general power stipulated in the vakalatnama was insufficient to enable the Advocate to act on his own responsibility so as to bind the appellants for the acts of the counsel, and that in addition it was incumbent on the part of the Advocate to have taken special authority before the compromise was agreed upon. I am unable to appreciate the contention, especially in view of the express authority contained in the vakalatnama.

4. The relation of a party with that of the Advocate appointed to conduct the suit on his behalf is regulated by the agreement, express or implied, between them. In the English Courts, the authority of an Advocate to compromise on behalf of a client in a suit is said to be derived from the known existence of the implied authority attributable to his appointment as counsel. If the authority is derived from an express agreement in writing, no question of implied authority arises, but the extent of the power is governed by the specific terms of the authority. In a general authorisation to conduct a case, the authority to compromise is not implied; and the Advocate in such cases cannot, without reference to his client, compromise a suit on his behalf. But the Advocate can always compromise if the express authority is contained in the vakalatnama. Following the practice obtained in the English Courts, Lord Atkin delivering the judgment of the Judicial Committee of the Privy Council observed in an appeal from Bengal - 'Sourendra Nath v. Tarubala Dasi', that

'their Lordships regard the power to compromise a suit as inherent in the position of an Advocate in India. The considerations that have led to the implied power being established in the Advocates of England, Scotland and Ireland, apply in equal measure in India.'

This decision was followed in a later case - 'Shecnandan Prasad Singh v. Abdul Fateh Mohammad', , where it was laid down that

'Counsel in India have the same implied authority to compromise an action as have counsel in English courts..... It may, however, be withdrawn or limited by the client; in such a case the actual authority is destroyed or restricted.'

These are cases in which implied authority was the question for consideration, without an express authority in writing. In the former case, the learned Lord (Lord Atkin) proceeds to state at page 162 that

'When a legal representative In Court of a client, derives his authority from an express written authority, such as a vakalatnama, different considerations may well arise, and in such cases their Lordships express no opinion as to the existence of any implied authority of any kind under discussion.'

Where the compromise was supported, not on implied authority but depended upon an express written authority, the opinion of their Lordships has been expressed in -- 'Sourindra Nath v. Heramba Nath', AIR 1923 PC 98 (C) thus:

'A pleader who does not hold or has not filed in the suit before the Court his clients' general power of attorney authorising him generally to compromise a suit on behalf of clients cannot be recognised by a Court as having any authority to compromise the suit, unless he has filed in the suit his clients' vakalatnama giving him authority to compromise the suit before the Court.'

When the party has retained a pleader and signed the vakalat which made no reference to the power to compromise, the Madras High Court held in -- 'Jagapati Mudaliar v. Ekambara Mudaliar', 21 Mad 274 (D) that

'it is not competent to a pleader to enter into a compromise on behalf of his client without his express authority to do so.'

This Court has, on a consideration of -- '21 Mad 274 (D)' and -- 'AIR 1923 PC 93 (C)', laid down in -- 'Naranaiyengar v. Naranachar', 4 Mys LJ 94 (E) that

'A pleader has no authority to enter into a compromise on his own responsibility unless the vakalatnama in his favour confers such authority on him and a compromise decree effected by the pleader without the necessary authority is not binding on the client.'

Even in the case of express authority in writing, the general power to conduct the case cannot imply a specific power authorising the Advocate to agree to compromise on his own responsibility. A provision in the vakalat 'to present, if necessary, petitions of rajinama for withdrawal and for referring to arbitration and to sign the rajinama, etc.', was held to be insufficient to give authority to the Vakil to enter into compromise without reference to his client (vide -- 'Thenal Ammal v. Sokkammal', AIR 1918 Mad 656 (F)).

5. It was further argued that the mere signature of the Vakil to the petition without indicating that it was so signed in pursuance of authority vested in him under the vakalat, does not bind the client. Reliance was placed for this proposition on -- 'Shital Prasad Singh v. Surendra Nath', : AIR1950Pat253 (G). In that case, the express authority in writing claimed by the Vakil to compound the case was not proved oy the production of the Vakaiat and in consequence, it was observed that the power, even if available, could not be recognised as there was not even an endorsement indicating that signature was appended in pursuance of the express power vested in him. The case is thus distinguishable and does not help the appellants. In the present case, the Advocate has made it amply clear in his deposition that 'I have compromised the suit on behalf of all the parties as I had power to do so' and this assertion is fully supported by the express authority to compromise, contained in Exhibit XIV the vakalatnama. There is thus no reason to interfere with the concurrent decisions of the Courts below.

6. In the result, the appeal is dismissed without notice.

7. Appeal dismissed.


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