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Buddhu Lal Vs. Raja Pertabgir - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtAndhra Pradesh High Court
Decided On
Case NumberSecond Appeal No. 6/4 of 1955
Judge
Reported inAIR1961AP467
ActsLamitation Act, 1908 - Sections 19 and 20
AppellantBuddhu Lal
RespondentRaja Pertabgir
Appellant AdvocateH.G. Kulkarni, Adv. for ;Venkat Rao, Adv.
Respondent AdvocateP.K. Sehgal, Adv. for ;Manik Lal Waghrey, Adv.
DispositionAppeal dismissed
Excerpt:
limitation - admission of claim - sections 19 and 20 of limitation act, 1908 - appeal filed by decree holder out of execution proceedings - respondent in written statement admitted claim in part - lawyer of respondent admitted full claim on his behalf - appellant claimed total amount on basis of admission - under section 19 lawyer by conduct binds his client - present statement admitting total claim on behalf of respondent is matter beyond lawyer's authority - no evidence under section 20 in writing of debtor to establish previous payments made for principal or interest - held, appellant cannot get benefit of statement made by lawyer. - all india services act, 1951. sections 32(c) (as amended by section 3 of amendment act, 2005] & 10 & general clauses act, 1897, section 6: [g.s...........that though a lawyer in the ordinary course of his duties as pleader has authority to bind his client by admissions of fact, but that should not relate to matters outside the scope of the case in which he was engaged and that further it was necessary for the purpose for which he was retained. in the light of this, if we were to refer to the facts of the instant case, we find that sri jaleel ahmed, advocate, was appointed a lawyer in the suit filed by the appellant for recovery of rs. 3319-11-0. the respondent in. his written statement admitted the claim of the plaintiff to the extent of rs. 2031-0-2 and that claim was decreed on 15-2-1353 f. on 26-7-53 f. when the case came up for hearing, the only matter that remained for determination as the claim of the appellant to the extent of.....
Judgment:

Manohar Pershad, J.

1. This appeal on behalf of the decree-holder arises out of the execution proceeding started by him. The decree-holder filed a suit against the respondent-judgment debtor for a sum of Rs. 3319-11-0 on 18th Mehar 1350 Fasli. The respondent, through his written statement dated 22nd Aban 1351 Fasli admitted the claim of the decree-holder to the extent of Rs. 2031-0-2 only and requested the Court to give him six months' time to pay that amount. The respondent did not pay that amount.

Subsequently, on 15th Dai, 1353 F. when the case came up for hearing before the trial Court, the appellant's lawyer and the appellant himself, who was present in Court, requested the Court to grant a decree against the respondent to the extent of the amount already admitted by him under Order XII, Rule 6 (1), C. P. C. with interest from the date of the suit till realisation. Accordingly, the trial Court on 15th Dai, 1353 F. granted a decree to the extent of Rs. 2031-0-2 with interest till payment, at the rate of 6 per cent per annum and with that order terminated the suit proceedings.

The appellant preferred an appeal and contended that whereas his suit was for the recovery of a sum of Rs. 3319-11-0, the trial Court only decreed the suit to the extent of Rs. 2031-0-2 and did not give any direction or proceed further with the rest of his claim which was still in dispute. This defect was conceded by the learned counsel for the respondent in the appellate court. Accordingly, on 1st Farwardi, 1353 F. the appeal was allowed and the case was remanded with the direction, that the trial Court should proceed with the rest of the claim of the appellant. After remand on 26th Khurdad 1353 F. the trial Court passed another decree in favour of tile appellant on the admission of the respondent for the balance of the claim.

2. It may at this stage be stated that before the aforesaid order of the appellate Court, the appellant had already filed an execution petition on 8th Bahman 1353 F. for Rs. 2031-0-2 i.e., the amount decreed on 15th Dai, 1353 F. On this petition, attachment was ordered. However, as the appellant did not deposit the necessary costs, this E. P. was dismissed for non-prosecution. Subsequently, the appellant filed another E. P. on 14th Khurdad 1356F. In column 3 of the E. P., the date of the decree is shown as 26th, Khurdad 1353 F. Column 5 shows that on 18th Thir. 1355 F. the judgment-debtor (respondent) paid Rs. 1250/-out of court.

In column 6 it is stated that this was the first E. P. Column 7 mentions the amount of the decree recoverable as Rs. 3319-11-0 and in column 10, the decree-holder requested the Court to order execution to the extent of Rs. 2199-1-3 after deducting Rs. 1250/- shown in column 3. Notice was ordered On this petition to the judgment-debtor, who appeared and filed his reply on 18th Shehrewar, 1358 F. admitting the payment of Rs. 1250/- but stating that this amount was paid to the decree-holder towards the second decree, namely the decree passed on 26th Khurdad, 1353 Fasli.

A further plea was taken that the E. P. was barred by limitation. The appellant in his rejoinder denied that the payment was made towards the second decree and stated that it was made towards the first decree. Ten days after the second execution petition i.e. 24th Khurdad, 1355 F. the appellant filed a petition for amendment of the decree stating that on the admission of a part of the claim by the respondent a decree was first passed to the extent of Rs. 2031-0-2 by the trial Court; on appeal the case was remanded and the respondent admitted the whole claim of the appellant, namely, Rs. 3319-11-0, therefore the original decree should be amended accordingly. This petition was dismissed for default. Subsequently, on 28th Sherrewar, 1356 F. another petition was filed by the appellant with the same request. Notice was issued to the respondent-judgment-debtor who appeared and objected to the proposed amendment. The executing Court rejected this petition holding that there were two separate decrees and the decree-holder should file two separate execution petitions.

3. As stated earlier, two objections were raised with regard to the E. P. of 14th Khurdad, 1356 F. The first related to the payment and the other to limitation. In so far as the first point is concerned, the executing Court held that when the decree-holder himself had not stated in the execution petition that the amount was paid towards the first decree, the very fact that he attached the copy of the decree of 26th Khurdad, 1353, is sufficient to come to the conclusion that the payment was towards the second decree.

The contention of the learned counsel for the appellant is that the executing Court was not justified in coming to that conclusion without taking evidence on the disputed point. We do not agree with the contention of the learned counsel. In the execution petition, the appellant simply stated that Rs. 1250/- were received out of court. The respondent (judgment-debtor) while admitting the payment of Rs. 1250/- stated that he had paid that amount towards the second decree and raised the question of limitation as regards the first decree.

The appellant for the first time in his rejoinder came with the plea that this amount was paid towards the first decree. The record does not disclose that he ever offered to lead evidence. On the other hand, it would appear that he was prepared only to argue on merits. Both the Courts, relying on the entry in column 5 of the execution petition dated 14th Khurdad, 1356 F., the copy of the decree of 26th Khurdad, 1353 F. attached to it, and also the fact that since he had on an earlier occasion applied for the amendment of the decree and that on 28th Aban, 1356 F. that point was decided against him in appeal and had become final, found that the appellant could not now, say that the amount of Rs. 1250/- was paid towards the second decree.

We do not find anything wrong in this conclusion. The appellant did not press this point not did he ask the Court to allow him to produce evidence in this regard; on the other hand, he merely requested for time for arguments thereby implying, that he had no evidence to lead. Besides the appellant did not object to the Decision of the trial Court in the first appeal on the ground that no opportunity was given to lead evidence, but only when he came in second appeal he has raised this-plea. The Courts below having regard to the conduct of the appellant and the other circumstances were right in coming to that conclusion It is significant to note that this point was not pressed even at the time of the reference. This is a belated attempt and an after-thought. Consequently, it has no merits.

4. As regards the question of limitation, the appellant relying on the statement made by Sri Jaleel Ahmed, Advocate for the respondent (judg--ment-debtor) on 26th Khurdad, 1353 F. wherein he admitted the entire claim of the appellant and the payment and appropriation under Section 62 of the Contract Act contended that E. P. was within time, having regard to Sections 19 and 20 of the Hyderabad Limitation Act. The executing Court did not accept the contention of the decree-holder and held that so far as the decree of 15th Dai, 1353 F. was concerned, the execution petition was time-barred and as regards the other decree of. 26th Khurdad, 1353 F. a copy of which was subsequently filed by the appellant along with the petition dated 1st Bahman, 1358 F. it directed the judgment-debtor to pay to the decree-holder Rs. 469-8-9 towards this decree with interest.

Aggrieved by the order of the executing Court, the appellant went in appeal. This appeal was dismissed. The decree-holder came up in second appeal to the erstwhile Hyderabad High Court. This appeal came up before our learned brothers, Qamar Hasan and Srinivasachari, JJ. who having regard to the importance of the question of law, namely, whether the statement of an Advocate admitting the debt, which had already been de-creed, would serve as an acknowledgment within the meaning of Section 19 of the Hyderabad Limitation Act, have referred this case to the Full Bench.

5. Sri Kulkarni, the learned counsel for the appellant (decree-holder) relying on Srivilliputtur Municipal Council v. Arunachala, AIR 1933 Mail 332, Chhaganlal v. Bonder Bai Rupchand, AIR 1934 Bom 186, Amar Krishna v. Nazir Hasan, AIR 1939 Oudh 257 and Thaker Das v. Sant Ram, AIR 1949 E. P. 219, contended that the appellate Court had erred in holding that the statement of Sri Jaleel Ahmed, Advocate, acknowledging the liability of the respondent to the extent of the entire claim of the appellant would not be sufficient acknowledgment under Section 19 of the Hyderabad Limitation Act, inasmuch as the question for consideration before that court was only the claim of the appellant to the extent of Rs. 128S-10-10.

It is his contention that when the lawyer possesses a general authority his admissions in the Ordinary course of Ms duties would be binding on his client. We do not find any force in this contention. It is true that a counsel possesses a general authority in the ordinary course of his duties which must be taken to continue until determined with the leave of the Court by the client or the counsel, as the case may be, or until the client or the counsel dies or until all proceedings in the suit are ended so far as regards his client as is provided is Rule 2 of Order III, C. P. C.

But the question of the binding nature of the admissions made by a lawyer on the client would depend on the facts and circumstances of that case and no general rule can be laid down. Now we have to see whether the fads in the instant case are such as would justify the admission made by the lawyer and bind the respondent. In order to determine this question, a reference to the admission and the circumstances is necessary. The admission of Sri Jaleel Ahmed, Advocate, is recorded in the proceedings of the Court and is in the following words :

'Parties are present through their pleaders. Raja Pratab Gir's advocate, Shri Jaleel Ahmed's statement is that the defendant admits the whole claim of the suit, namely, Rs. 3319-11-0 and therefore, the decree be passed for the whole sum of the Suit claimed.'

On 26th Khurdad, 1353 F. when this admission wag made only the claim of the appellant to the extent of Rs. 1288-10-10 was for determination of the Court because for the other portion, namely, to the extent of Rs. 2031-0-2, a decree had already been passed on 15th Dai, 1353 F. on the admission of the respondent. It is clear therefore that the claim of the appellant to the extent of Rs. 2031-0-2 was not before the trial Court, wherein Sri Jaleel Ahmed could make such an admission.

The question therefore that would arise is whether in such circumstances Sri Jaleel Ahmed had the authority to make an admission and if he made such an admission whether that would bind the respondent and would save limitation under Section 19 of the Hyderabad Limitation Act, The cases relied upon by the learned counsel for the appellant only relate to the general powers of the pleader or counsel, and do not help in determining the particular point raised before us and here we think it unnecessary to go into a detailed discussion of those cases.

6. What we have to see is whether at the time when Sri Jaleel Ahmed, Advocate, made that admission it was necessary for the purpose of the matter in dispute to make such an admission, for it is only such admissions that can hind his client.

7. In the Allahabad High Court, an identical question had come up before a Bench in Hinganlal v. Mansa Ram, ILR 18 All 384. In that case also, an Advocate had made an admission on behalf of his client in the memorandum of appeal to the effect that a certain decree was subsisting. Question arose whether such an acknowledgment on the part of the advocate was necessary for the purpose and whether it was binding on the party. Sir John Edge, Chief Justice and Mr. Justice Blenner-hasett strongly doubted that an Advocate or a Vakil could make a signed acknowledgment within the meaning of Section 19 of Act XV of 1877 so as to bind his client, when the acknowledgment relied on was unnecessary for the purpose for which the Advocate or Vakil had been retained.

This case was referred to and relied upon by the same High Court in Kamta Rai v. Rani Jaduraj Kunwari, AIR 1931 All 398, and approving the observation made therein it was held that an admission by a pleader in a petition made in course of his business was binding as an acknowledgment so as to give fresh starting point irrespective of whether the pleader represented majors or guardian for minors.

Identical question relating to the powers of an Advocate to compromise and its effect on the party came up for consideration in the Calcutta High Court in the case of Digbijoy Roy v. Ata Rahman, 17 Cal WN 156. That was a case where the lawyer appearing in the case through a petition admitted that he bad received money from the transferee marfatwaree, and a question arose whether such an admission by the Advocate was binding on the party, Relying on the case of ILR 18 All 384, it was held :

'Although a pleader has no power to compromise a suit unless he is specially authorised in that behalf, he can hind his client by an admission upon a question of fact, provided that such question falls within the scope of the suit in which he has been retained.'

In another case before the same High Court in Nundo Lal Bose v. Nistarini Dassi, ILR 27 Cal 428, the question of the powers of a counsel to enter into compromise and its binding nature on the party had come up for discussion and it was held

'that counsel possessed a general authority, an apparent authority, which must be taken to continue until notice be given to the other side by the client, that it had been determined to settle and compromise the suit in which he was actually retained as counsel; that where the compromise however, extended to collateral matters, to matters quite outside the scope of the particular case in which counsel was engaged, in order to bind his client, it must be shown that he had given his client special authority to compromise upon the terms upon which the compromise was effected and the other side could not avail themselves of the position that they did not know that it had not been given; that they were not entitled to assume, as in the case of an apparent authority, that it was given and was existing; and that where counsel under a misapprehension of his client's instructions and believing himself to have authority acted in fact without it, he cannot bind his client'. ILR 18 All 384, was also referred to in the case of Jeddi Subraya v. Ram Rao, ILR 22 Bom 998. Identical question had come up for discussion before the Madras High Court in the case at Kandaswami Reddi v. Suppammal, ILR 45 Mad 443 : (AIR 1922 Mad 104), and it was held thaE a statement by a person that he executed a hypothecation in favour of another cannot be construed as containing an implied acknowledgment of liability unless it was clear therefrom that he admitted that the debt was still subsisting or unless there was a clear necessity at the same time to mention the fact of discharge.

In this case also ILR 18 All 384, has been referred to and relied upon. In the case of Satyanarayanamoorthy v. M. Ramireddi, AIR 1924 Mad 856, the above decision of the Allahabad High Court was referred to by the appellant and relied upon in support of his contention. Jackson, J. while not dissenting from this principle distinguished this ruling on the ground that it did not apply to the facts of that case and therefore not helpful.

8. From the above discussion, it would follow that though a lawyer in the ordinary course of his duties as pleader has authority to bind his client by admissions of fact, but that should not relate to matters outside the scope of the case in which he was engaged and that further it was necessary for the purpose for which he was retained. In the light of this, if we were to refer to the facts of the instant case, we find that Sri Jaleel Ahmed, advocate, was appointed a lawyer in the suit filed by the appellant for recovery of Rs. 3319-11-0.

The respondent in. his written statement admitted the claim of the plaintiff to the extent of Rs. 2031-0-2 and that claim was decreed on 15-2-1353 F. On 26-7-53 F. when the case came up for hearing, the only matter that remained for determination as the claim of the appellant to the extent of Rs. 1288-10-10 and there was no occasion for admitting the entire amount of Rs. 3319-11-0 in which the amount of Rs. 2031-0.2 which was already decreed was also included.

The admission of Sri Jaleel Ahmed to the extent of Rs. 2031-0-2 was outside the scope of his authority for which he was retained. That apart, on 26-7-53 F. it was not necessary for Sri Jaleel Ahmed to have admitted the claim already decreed and such an admission cannot bind the respondent. In view of the matter, the appellant would not get the benefit of Section 19 of the Limitation Act.

9. It is further urged on behalf of the appellant that assuming that the appellant is not entitled to the benefit of Section 19 of the Limitation Act, when the respondent admitted having paid Rs. 1250/- on 18th Thir, 1355 F. and the appellant appropriated that amount towards the first decree that payment by the respondent was sufficient to give relief to the appellant under Section 20 of the Hyderabad Limitation Act. This argument is equally devoid of force. Under Section 20 of the Hyderabad Limitation Act, if payment is made towards the principal, it is necessary that it should be in writing and signed by the judgment-debtor and if payment is made towards interest, that should be by an authorised agent and as interest.

In the execution petition, wherein reference to this payment has been made, nothing has been indicated as to whether this amount of Rs. 1250/-was paid towards the principal or interest. It is admitted by the learned counsel for the appellant that there is no writing to evidence this payment. When there is no writing and there is nothing to show whether it was made towards the principal or interest, the appellant, in our opinion, cannot get the benefit of Section 20 of the Limitation Act.

10. In the result, the appeal is dismissed with costs throughout.


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