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thenal Ammal and anr. Vs. Sokkammal and Forty-six ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported inAIR1918Mad656; (1918)ILR41Mad233
Appellantthenal Ammal and anr.
RespondentSokkammal and Forty-six ors.
Cases ReferredMatthews v. Munster
Excerpt:
civil procedure code (act v of 1908), order xxiii, rule 3, and section 96, clause (3) - compromise--power of vakil to enter into--construction of vakalat--recording of compromise--duty of court to inquire--decree in terms of compromise--appeal, when allowed. - - from the point of view of the client, we think that it is not safe that he should be regarded by engaging a vakil to have given him authority to dispose of his rights in. lord justice bowen points out in that case that the client asked the counsel to do the best he can in the case; at any rate, we are satisfied that in this case the importance and necessity of recording the compromise was not realized by the subordinate judge......settle the claim of his clients.2. mr. narasimha ayyangar contended that the ordinary power of the vakil to enter into compromises and to withdraw suits in which he is engaged is inherent in him by the engagement, and cites justice sadasiva ayyar's decision in ragoji rao v. lakshman rao sahib (1912) 22 m.lj. 381 in support of this contention, in jagapati mudaliar v. ekambara mudaliar i.l.r. (1898) mad. 274 subrahmanya ayyar and benson, jj., pointed out that the practice prevailing in england by which counsel and solicitor are clothed with extensive powers to agree to terms on behalf of the client should not be imported into this country. we are inclined to agree with this view. it is not the ordinary duty of an advocate to negotiate terms, without reference to his client, with the.....
Judgment:

1. A preliminary objection is taken by Mr. Narasimha Ayyangar that no Second Appeal lies as the compromise was recorded without protest and as subsequently a decree was passed in terms of the compromise. This objection should be overruled, as the very foundation of the compromise, namely the authority to enter into it, is impeached. Following Ayyagiri Veerasalingam v. Koovur Basivi Reddi (1915) 27 M.L.J 173 we hold that the appeal is competent. The Courts below have held that the plaintiffs were bound by the compromise as the vakalat given by them to their vakil expressly enabled him to enter into a compromise. We do not think that the word supports this conclusion. We understand the expression 'to mean' that the vakil is to do certain acts when and if the occasion arises. The acts themselves are subsequently enumerated. They are (a) to sign the petition for entering into the compromise or for withdrawing the suit, and (b) to sign the final compromise petition to the Court. These two enumerated powers show that the plaintiff did not intend that the vakil should have unlimited powers to settle the claim of his clients.

2. Mr. Narasimha Ayyangar contended that the ordinary power of the vakil to enter into compromises and to withdraw suits in which he is engaged is inherent in him by the engagement, and cites Justice SADASIVA AYYAR'S decision in Ragoji Rao v. Lakshman Rao Sahib (1912) 22 M.LJ. 381 in support of this contention, In Jagapati Mudaliar v. Ekambara Mudaliar I.L.R. (1898) Mad. 274 Subrahmanya Ayyar and Benson, JJ., pointed out that the practice prevailing in England by which Counsel and Solicitor are clothed with extensive powers to agree to terms on behalf of the client should not be imported into this country. We are inclined to agree with this view. It is not the ordinary duty of an Advocate to negotiate terms, without reference to his client, with the opposite party. Such an action is calculated to place the practitioner in a false position. We do not think it desirable that such a power should vest in him in the interest of the profession. From the point of view of the client, we think that it is not safe that he should be regarded by engaging a vakil to have given him authority to dispose of his rights in. any way he chooses. Therefore we think that the general power claimed is not in consonance with the highest ideals of the profession or of justice. For these reasons we think that a very strict interpretation should be placed upon vakalats containing powers of this kind. The learned vakil quoted Matthews v. Munster (1887) 20 Q.B.D 141 to show that Counsel was allowed to settle the amount of the damages awardable to his clients. Lord Justice Bowen points out in that case that the client asked the Counsel to do the best he can in the case; such an unlimited authorization might have justified the view taken in that case. It is pointed out by all the Lords Justices that the Court has plenary powers in any case to enquire into the justness or bona fides of the settlement reported to it. In this country such a power should be exercised by the Court even more largely than in England. It is for that reason that the intermediate stage of recording the compromise is introduced in the Code. We are afraid that Courts seldom appreciate the significance of this provision. At any rate, we are satisfied that in this case the importance and necessity of recording the compromise was not realized by the Subordinate Judge.

3. We must hold that there has not been a sufficient enquiry into the question whether the compromise was authorized by the appellants especially as we hold that the vakalat does not give authority to the vakil to enter into the compromise without reference to his clients.

4. We must set aside the decrees of the Courts below and remand the case to the Court of First Instance for ascertaining whether the compromise is binding on the plaintiffs. If he comes to the conclusion that it is not binding, he must proceed to dispose of the case in the usual way. Costs will abide the result.


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