1. The question for our decision is, 'whether, when the parties to a suit, have by an agreement adjusted the subject (sic) of the suit the Court can or cannot, by an order made in the suit, (sic) order such agreement to be recorded and make a decree in accordance with it, if one of the parties to such agreement object.' Although the question does not specifically refer to Section 375 of the Code of Civil Procedure, it is clear from the terms of the reference, and it was admitted, that the question really submitted is whether the Court can make the order under that particular section.
2. It appears that there has been much litigation between the plaintiff and the defendant in the suit, both in the Criminal and Civil Courts, and ultimately they entered into the agreement, dated the 19th May 1894. By this agreement the defendant agreed (amongst other matters) 'to consent to a decree for an account in the suit now pending in the High Court, Original Side (being suit No. 397 of 1893) within a week from date,' that is, from the date of the agreement, viz., the 19th May 1894. The suit No. 397 is the present suit. The agreement referred to other matters, and so far as the plaintiff is concerned the agreement has been performed on his part. On the 11th June 1894 the defendant instituted an action to have that agreement set aside on the ground of duress and pressure. That suit came on for hearing in due course, and the agreement was held to be valid and binding by Mr. Justice Sale, whose decision has recently been affirmed on appeal by this Court. It must be taken, therefore, for the present purpose, that the defendant has entered into a valid agreement---by valid agreement I mean lawful agreement---and has agreed to consent to a decree for an account in the present suit.
3. Under these circumstances the plaintiff asks under Section 375 of the Code to have the agreement recorded and a decree made for an account in accordance with the clause of the agreement which I have read.
4. Mr. Justice Sale made the decree as asked, and an appeal was subsequently presented to this Court which has led to the present reference. The appellant contends that, even when there has been an agreement, as in the present case, to adjust the suit, the Court can only act under Section 375 upon that agreement if both parties consent; and that if they do not consent, the agreement can only be enforced by a fresh suit for specific performance.
5. If this view be sound it would practically reduce Section 375 to a nullity. The case is clearly within the language of Section 375, which says nothing about the agreement being recorded, or the Court passing the decree, only with the consent of the parties at the time.
6. By this agreement the defendant has already agreed to consent to a decree for an account, and to say that Section 375 can only apply, if, after that consent and in addition to it, the parties must again consent or continue to consent before the agreement can be recorded, or the decree made, would, to my mind, have the effect of introducing entirely new words, and an entirely fresh element, into the section, and for which I can, find no warrant. It was strongly urged before us that if the section were held to, apply, save by consent of both parties, the defendant would be in a worse position than if he were a defendant in a fresh suit for specific performance, as in the latter case he would have a right of appeal, and in the former none owing to the words in Section 375 'and such decree shall be final.' It may well be that the Legislature considered that if the parties adjusted their suit by agreement, and a decree was passed in accordance therewith, an end should then and there be put to the litigation and that no appeal should lie. But I do not think these words, even if they have the effect for which the appellant contends, can qualify, in the manner necessary to enable the appellant to succeed, the previous words of the section, which appear to me to be plain and clear.
7. I may point out that no preliminary objection to the appeal lying was taken by the respondents in the present case, and that in the case of Harasun-dari Debi v. Dukhinnessur Malia I.L.R. 11 Cal. 250 it was distinctly held that an appeal would lie.
8. It was urged that the agreement referred to matters other than the settlement of this suit, and that the Court cannot separate them and cones -quently cannot make a decree in this suit, but must drive the parties to a further and separate litigation. In this particular case there is practically no such difficulty; the plaintiff has done all he had to do, and all the rest of the agreement has to be performed by the defendant. But in any case before making any decree on the footing of the agreement, the Court would necessarily provide that if anything were to be done by the plaintiff it should be done In other words, qua the agreement, the Court would see that justice was done between the parties. The Court has equally the power of doing justice on an application to enforce the agreement in the particular suit, as it would in the case of a new suit.
9. In my opinion, therefore, the view urged by the appellant is inconsistent with the language of the section, read as it ought to be read, in its natural and ordinary sense, and cannot prevail. The section is a salutary and a useful one. Its object is that, when the parties have by agreement adjusted their differences, effect shall be given to that agreement by the Court in the suit itself as rapidly and with as little expense as is practicable, in lieu of the Court relegating the parties to afresh suit and to fresh litigation creating, as it necessarily would, further expense and further delay. The language of the section is strong, the agreement 'shall' be recorded, and the Court 'shall' pass the decree.
10. In the case of Scully v. Lord Dundonald L. R. 8 Ch. Div. 669 Lord Justice Cotton said: ' The plaintiff's claim has been established, not by trial of the action, but by agreement between the parties, and it would be unfortunate if we were obliged to say that the action must go on to decide what has already been settled by the parties.' Those words are very pertinent to the present case.
11. My view of the construction of the section is, in accordance with what I might almost call a current of decisions, which I need not enumerate, as they have all been cited during the argument, in the High Courts of Madras and Bombay, as with several decisions of various Judges sitting as Judges of first instance in this Court. The only authority against this view is that of the case I have referred to, Harasundari Debi v. Dukhinessur Malia I.L.R. 11 Cal. 250.
12. In that case I am by no means satisfied from the report that there was a concluded and binding agreement; it was apparently contingent upon the sanction of the Court, and before that sanction was obtained certain of the parties withdrew. Here we have a clear, definite and lawful agreement held by two Courts to be binding on the defendant. But be that as it may, I am quite (sic)able, for the reasons I have given as to the construction of Section 375, to (sic)Jjjcur in the judgment in that case, which is quite at variance with the other cases to which I have referred. I answer the question in the affirmative.
13. In June 1893 the respondent brought a suit on the(sic)'Jl Original Side of this Court against the appellant, basing it on an agreem(sic)^*' entered into by the parties on the 15th July 1891 for an account of all his dealings with the estate in suit, for delivery of all papers, books, accounts, etc., relating to the estate, and for payment of all sums found due from him. There was also a prayer in the plaint in that suit that the appellant may be restrained by injunction from interfering with or in any way obstructing the management of the estate by the respondent. The suit was based, as I have said before, on an agreement, dated the 15th July 1891.
14. In answer the defendant objected to the jurisdiction of the Court, and denied that he at any time had acted as manager to the plaintiff or was liable to account. It appears, however, that subsequently, while the suit was pending the defendant entered into an agreement with the plaintiff, which is dated 19th May 1894, and which is as follows :-(Reads agreement, ante p. 910).
15. This is an agreement consisting of several clauses. It appears from the order of reference that on the 11th June 1894 the defendant instituted a suit to have this agreement set aside on the ground of duress and undue influence,and upon the hearing of that suit it was held, both by the first Court and by the Court of appeal, that the agreement was valid and binding.
16. The judge, who decided the present suit, said that immediately on the case being opened the Counsel for the plaintiff applied under Section 1375 of the code to have the agreement of the 19th May 1894 recorded in the suit, and a decree made in accordance with Clause 2 of that agreement. The Counsel for the appellant, the defendant in the Court below, admitted execution of the agreement, but refused his consent to have a decree drawn up in terms of Section 375. Furthermore, he raised contentions in regard to the jurisdiction of the Court and the period of limitation applicable. These objections being set aside, the Judge proceeded to enter up a decree under Section 375 of the Code of Civil Procedure. In his judgment he referred to the decision of a Divisional Bench of this Court---Harasundari Debi v. Dukhinessur Mali a I.L.R. 11 Cal. 250; and he also referred to some cases decided by the Bombay and Madras High Courts, in which a different view was taken of Section 375. He pointed out that a different interpretation of the section from that arrived at in Harasundari Debi v. Dukhinessur Malia I.L.R. 11 Cal. 250 had been adopted by various Judges sitting on the Original Side of this Court and declared that the practice of the Court had been governed in accordance therewith. He stated that on inquiry be had ascertained that on different occasions Judges of this Court had directed a preliminary issue to be tried as to the fact of an agreement sought to be recorded under Section 375, where such agreement had been denied, and he referred to the recent case of Chogemull v. Kuppur Chand (unreported), in which that procedure was followed. He also referred to the case of Krishna Bibi v. Debi Pershad Agariuallah (unreported), in which the question was thoroughly argued and decided, and he recited the opinion that was expressed on that occasion. Under these circumstances the Judge has taken Clause 2 out of the clauses of the agreement entered into between the parties, one of which was to be performed by the opposite party, and without discussing its meaning has on motion given specific performance of what is only a part of the agreement. He has further declared that in accordance with the law of this country a decree should be entered up under Section 375 of the Code of Civil Procedure ---a decree which is final and against which an appeal does not lie.
17. The defendant appealed, and the Judges before whom the appeal came have referred to us the following question:
Whether, when the parties to a suit have by an agreement usted the subject-matter of the suit, the Court can, or cannot, by an order made in the suit, order such agreement to be recorded and make a decree in accordance with it, if one of the parties to such agreement object.
18. From the statement made in the order of reference it would appear that their Lordships were of opinion that by the agreement, dated the 19th May 1894, the defendant consented to a decree for an account in the suit now pending on the Original Side of this Court (being suit No. 397 of 1893) within a week from date, that is, from the 19th May 1894. The suit No. 397 is the present suit. This is quite correct, but subject to the qualification that it was an agreement not merely to consent to a decree, but an agreement in which it was also declared that several other things should be done, and it was not found that the opposite party had performed his portion or even agreed to perform. In paragraph 4 of the reference it is stated that the point is to be decided under Section 375 of the Code of Civil Procedure, whether the Judge in the Court below was justified in having the agreement brought in and recorded, and in making a decree for an account in accordance with paragraph 2 of the above agreement. This is subject to the same qualification to which I have just referred, namely, that it was not a single agreement in regard to the suit, but an agreement for many things to be done.
19. The Judges referring this question agreed in the view adopted by the court below; they disagreed with the decision reported in Harasundari Debi v. Dukhinessur Malia I.L.R. 11 Cal. 250 and referred the question to a Full Bench.
20. It will be noticed that the question referred to the Full Bench does not in so many words refer to Section 375 of the Code of Civil Procedure, and it was argued at the bar that it was unnecessary to decide any question in regard to this section so far as this suit is concerned. Looking, however, at paragraph 4 of the reference I think we must take two points into consideration: first, whether the judgment in this case is a judgment under Section 375 of the Code; and, secondly, if it is not such a judgment whether it can be supported on any other grounds.
21. In order to narrow the issue which was raised in this case, it is necessary to review the position which it assumes before us. The real question to be tried is this: Where in a suit for account on a kabuliyat, an agreement to consent to a decree for account is brought in, and the defendant objects to the jurisdiction of the Court and pleads limitation, and admitting execution of the agreement refuses to consent to a decree upon it under Section 375, whether the Court can, under that section or any other law in force, decree specific performance of one clause of the agreement, and, furthermore, decree it in such a manner as to make the decree final and not open to appeal. That is the point which arises in this case and nothing else. For I conceive that no question of law could be decided by this Full Bench, unless the Judges considered that it arose in the suit.
22. In regard to the question referred to the Full Bench it was argued on behalf of the appellant that a final decree under Section 375 cannot be made in a suit where there is any contest between the parties as to the agreement or the nature of it. It was further contended on behalf of the appellant that, even if this view of the section be incorrect, a Court acting under it is not empowered to break up the contract between the parties and give a decree upon a portion of it from which no appeal lies, leaving the remaining fragments of the agreement to be enforced or not enforced as the law directs. It was further contended on his behalf that this section had no application where the agreement provided for matters beyond the purview of the suit, and, in the latter case, the parties to the agreement should be left, as they were in similar. cases by the High Court of Chancery, to settle the matters in a suit for specific performare.
23. In regard to the first portion of the argument the appellant asserted that in all cases under the Code, where any question of contest arises, there is a procedure set out by which that contest may be decided, and he referred to Sections 150, 150A, 151, 153 and 157A, as instances. He also pointed out that under Section 379, when satisfaction of a decree is entered up, it must be done in a certain manner. From this it was argued that as Section 375 does not provide for any contest between the parties, a decree under that section cannot be made, unless the parties or their representatives apply in open Court and submit to the terms of the agreement which should be entered up and recorded in a decree, and that there is a distinction between a consent decree on a compromise out of Court and a decree entered upon a compromise in Court---Ram sahai singh v. Dhunookdharee Singh l W. R. 266, Aushootosh Chandra v. taraprasanna Roy I. L. R. 10 Cal. 610. He submitted further that it gives no power to a Court to break up an agreement between the parties unless by consent at the time of judgment, and make a decree which would be final in respect of a portion of it, which in this case could not be done even in a suit for specific performance.
24. On the other side it was argued that there is no such limitation in the words of section; that it applies equally well in cases of compromise out of Court or in court, for litigants may at any time enter up a consent decree; that the Code must be construed as any other document---Bank of England v. Vagliano Brothers L. R. (1891) A. C. 107; that the words 'lawful agreement' show that the Court must have some means of determining whether an agreement is lawful or not; and that even when the engagement contains a number of items, whether they all refer to the suit or not, the Court can pick out any one of them and give a decree for it alone under Section 375. It was further argued that even if Section 375 did not apply to this case still under the equity procedure of this Court on the Original Side, the Court has the power to decide the case on motion.
25. It is conceded by both parties that the equitable jurisdiction of this Court on its Original Side is that of the High Court of Chancery in England. Neither party contends that the additional powers given to the Supreme Court of Judicature in 1873, or afterwards by Statute, has any application to this case; and this is of importance, because I think it will be seen that in most of the cases decided under Section 375 the Judges were greatly influenced by the idea that the Courts in India, from the highest to the lowest, had all the powers of the Supreme Court of Judicature in England.
26. Section 375 of the Code, as is pointed out in Harasundari Debi v. Dukhi-nessur Malia I.L.R. 11 Cal. 250 is only a modification of Section 98 of Act VIII of 1859. The relation of that section to the previous law and the old Regulations has been pointed out in the case of Konnapalen Uthat-chadayan Haji v. Perotta Meloden Ramen Nambiar 4 Mad. H. C. 422 which will be referred to hereafter.
27. Section 98 runs as follows: 'If a suit shall be adjusted by mutual agreement or compromise, or if the defendant satisfy the plaintiff in respect to the matter of the suit, such agreement, compromise or satisfaction shall be recorded, and the suit shall be disposed of in accordance therewith. On the application of the plaintiff reciting the substance of such agreement, compromise or satisfaction, the Court, if satisfied that such agreement, compromise or satisfaction has been actually entered into or made, shall grant a certificate to the plaintiff authorizing him to receive back from the Collector the full amount of stamp-duty paid on the plaint, if the application shall have been resented before the settlement of issues, or half the amount if presented at (sic)w time after the settlement of issues and before any witness has been examined. Provided, however, that no such certificate shall be granted, if the adjustment between the parties be such as to require a decree to pass on which process of execution can be taken out.
28. The latter portion of Section 98 was modified by Act X of 1862, Section 26, and by Section 9 of Act XLII of 1860. Act X of 1862, Section 26 runs as follows: 'In modification of so much of Section 98 of the Code of Civil Procedure as declares that on the application of the plaintiff reciting the substance of any agreement, compromise or satisfaction in accordance with which a suit is adjusted and disposed of, the Court, if satisfied that such agreement, compromise or satisfaction has been actually entered into or made, shall grant a certificate to the plaintiff, authorizing him to recover back from the Collector the full amount of the stamp-duty paid on the plaint if the plaint shall have been presented before the settlement of issues. Or half the amount if presented at any time after the settlement of issues and before any witness shall have been examined, it is enacted that if such application shall have been presented before the suit is called for the settlement of issues, or in suits in which the summons to the defendant shall be for the final , disposal of the suit, as directed in Section 41 of the same Code, and in Section 9 of Act XLII of 1860 (for the establishment of Courts of Small Causes beyond(sic)rI'-e' the local limits of the jurisdiction of the Supreme Courts established by Roya Charter) before the bearing of the suit has commenced, the Court, if satisfied that such agreement, compromise or satisfaction has been actually entered into or made, shall grant a certificate to the plaintiff' authorizing him to receive back from the Collector half the amount of the stamp-duty paid on the plaint. Provided that no such certificate shall be granted if the adjustment between the parties be such as to require a decree to pass, on which process of execution can be taken out, or in any appealed suit.'
29. The first question necessary to decide is what was the view which the Judges took of Section 98 of Act VIII of 1859. Did it apply to agreements out of Court or in Court; whether it covered a contest or not; whether it justified, as has been contended in the present case, the Court in entering up a decree under that section, on one clause of an agreement which related to several matters, some of which were and some were not connected with the suit in question; what was the practice in entering up a decree.
30. The earliest decision I can find on this point is the case of Bishtoo Chunder Roy Chowdhry v. parbutty Debia Marsh. 274. In that case both parties filed, according to the well-known practice of the Courts in the Mofussil, petitions of compromise, and the only question was as to the amount of stamp duty to be refunded. The decision is of little importance except as a guide to what was then the practice---See Luchmun Ram v. Watson & Co. W. R. Gap. No. (1864) 146.
31. The next case is that in 1 Madras High Court Reports, 127. In that, too, the compromise effected was after suit brought and in open Court.
32. Following this is the decision in the case of Konnapalen Uthatchadayan Haji v. Perotta Meloden Ramen Nambiar 4 Mad. H. C. 422 to which I have already referred. That was a decision of Bittleston and Innes, J J., one, if not both, having been Judges of the Supreme Court. Their interpretation of the section was as follows: 'That section provides that, if a suit shall be adjusted by mutual agreement or compromise, such agreement or compromise shall be recorded, and the suit shall be disposed of in accordance therewith, and the question is whether this suit was adjusted by mutual agreement or compromise, so that it could be disposed of in accordance therewith. We think that what is meant by this language is, that the parties should agree upon some terms respecting the subject-matter of the suit which are capable of being embodied in a decree whereby the suit would be disposed of. In the present case there certainly was no such agreement, but only an agreement that, if the defendants should do certain things, a decree should be passed in favour of one party, and if they should fail to do those things then in favour of the other party, so that what decree should be passed would depend upon the result of an inquiry, whether subsequently to the agreement certain acts had or had not been performed. The suit was not adjusted by the agreement, and the decree which was passed was admittedly not a decree by consent. It was a decree passed against the strong objection and protest of the third defendant, the present appellant, and we think that having been given without any investigation of the merits and not in accordance with any procedure sanctioned by law, it must be set aside, and the case restored to the file of the Principal Sudder Amin for investigation on the merits.'
33. In this case the compromise was filed in Court.
34. This decision was considered in 1879 by the Madras High Court in the case of Vasudeva Shanbog v. Naraina Pai I.L.R. 2 Mad. 356 and the view taken in it was confirmed. In that case the Judges said:
After the Code of Civil Procedure became law, the Regulation (III) of 802 was repealed by Act X of 1861; and, alluding to this fact, the High Court, ruled that the sections relating to the settlement of suits by oath, when the parties mutually consent to that mode of settlement, being repealed, the Courts no longer possess the power of following that procedure, though there is nothing pi to prevent the Courts, if they have the means, from facilitating a settlement of this nature by the parties by satisfying themselves that the necessary conditions are fulfilled. The proper procedure under this proviso was to examine the parties concerned after the oath is taken, to see that if the consent, originally expressed conditionally, was still adhered to, and then to pass a judgment by consent; but if the consent was then withdrawn, the Courts had no alternative, as held in Konnapalen Uthatchadoyan Haji v. Perotta Meloden Raman Nambiar 4 Mad. H. C. 422but to dispose of the case in the regular way.
35. The same decision was followed in Muhammad Zahur v. Ched a Lal I.L.R. 14 All. 141. In that case the Judges decided that no decree could be entered up under Section 375 of the present Code, where something else had to be done, such as examining a witness.
36. This too explains the remark of their Lordships of the Judicial Committee of Her Majesty in Council in the case of Abdool Ali v. Mozuffar Hossein Chow-dhry 16 W. R. P. C. 26 in which they say: ' If there really had been an honest compromise made, the practice of the Courts is quite plain as to how that compromise ought to have been carried out; it ought to have been earned out by proper deeds and filed in Court, particularly where infants were concerned, so as to have had the assent of the Court at the time instead of its being totally concealed from them.'
37. In short, the whole course of decisions under Section 98, Act VIII of 1859, show without dissent that a compromise should under the proper practice be made by two deeds called a razinama and satinama and recorded in Court. But when parties did not enter into any such documents, but appeared in Court and consented to a compromise, the Judge could record it and give a decree thereon, though this was irregular. Further still, if the consent was withdrawn or something required to be done by the Court, the suit must be decided as a contentious suit. Further still, if the agreement contained terms giving relief in the alternative or referred to matters outside the suit, it did not fall within the section. I may add that the last view has been taken by a Division Bench of this Court in the case of Fajaleh All Meah v. Kamaruddin Bhuya I.L.R. 13 Cal. 170 that Section 375 of the present Code refers only to a compromise which adjusts a suit wholly or in part, and not to one which goes beyond the suit. If this view be correct, it is clear that the compromise in the present case cannot be enforced under Section 375 of the present Code.
38. And the reasons for these decisions are, I think, obvious. Act VIII of 1859 was an Act to simplify the procedure of the Civil Courts in the Mofussil, and did not apply to Courts established by Royal Charter, so Judges, considering that no change in the law was intended, followed the decision of the Sudder Dewani of 1851 in regard to compromises in Courts where agreements could not be enforced by motion. It was not till the High Court was established that Act VIII of 1859 affected the Original Side of this Court, and even then Section 98 did not apply---Barrow v. Pollock 1 Hyde 149.
39. In the case referred to, Mehadi All v. Kunwar Ram Chunder (unreported) four Judges of the Sudder Dewani decided as follows: 'We are of opinion that, at any time before deeds of adjustment, withdrawal of claim, or the like which may have been filed in a Court by petition, have been brought before the ' Court for its order and decree in the case, a plaintiff is at full liberty ony his own responsibility to recall any application which may have been made by the petition for the passing of a judgment by the Court in pursuance of such deeds, and to move the Court for an investigation of the merits of the suit. Any application preferred by a plaintiff can be withdrawn by him before the Court has taken it up and passed an order on it. It is the duty of a Court to investigate and decide on plaints laid before it; and it cannot refuse to perform that duty and hold the plaintiff bound by an arrangement which has never been completely carried out by sanction of the Court, and which for the purposes of the suit he repudiates. It is a distinct question whether the plaintiff can obtain any benefit from a decree should he gain one in his suit. Another suit may be brought against him by the adverse party to stay the execution of such a decree as well even under different circumstances, as to enforce damages against him on the ground of his being legally liable under agreements into which he may have entered. But this is matter separate from the plaintiff's right to have at his own option an inquiry and award on his original plaint. Nothing can deprive him of that right, but his own act of withdrawal perfected by his acknowledgment of it in the face of the Court, and by the Court's sanction and adoption of it.'
40. Act VIII of 1859 was repealed by Act X of 1877. It is described as an Act to consolidate and amend the laws relating to the procedure of the Court of Civil Jurisdiction. Section 98 of Act VIII of 1859 became Section 375 of Act X. It ran as follows: 'If a suit be adjusted by any lawful agreement or compromise, or if the defendant satisfy the plaintiff in respect to the matter of the suit, such agreement, compromise or satisfaction shall be recorded, and the Court shall pass a decree in accordance therewith so far as it relates to the suit, and such decree shall be final.' This Act was repealed by Act XIV of 1882, in which Section 375 runs as follows: 'If a suit be adjusted wholly or in part by any lawful agreement or compromise, or if the defendant satisfy the plaintiff in respect to the whole or any part of the matter of the suit, such agreement, compromise or satisfaction shall be recorded, and the Court shall pass a decree in accordance therewith so far as it relates to the suit, and such decree shall be final so far as it relates to so much of the subject-matter of the suit as is dealt with by the agreement, compromise or satisfaction.'
41. A comparison of these sections with Section 98 of Act VIII will show how small is the difference between them, and even that difference does not refer to procedure but only to the scope of the section.
42. I do not feel any difficulty in dealing with the case of the Bank of England v. Vagliano L. R. (1891) A. C. 107. In the middle of page 145 of the report Lord Herschell says that he is far from asserting that resort may never be had to the previous state of the law for the purpose of aiding in the construction of a provision of doubtful import, or where words have acquired a technical meaning. This latter remark, I think, applies to the word 'compromise' under Section 98 of Act VIII of 1859. Nor does it seem to me that any argument can be based on the words 'lawful agreement.'
43. This was the law even before Act VIII of 1859 was in existence, as may be seen from the case of Gregory v. Cochrane 2 Moore 181.
44. I will now turn to the cases referred to by the Judge in the Court below. Two classes quite distinct in their nature appear to have arisen---one where an agreement is set up and there is a defence which goes to show that the suit as laid in the plaint should be dismissed; the other, like the present case, where an agreement is brought into Court and performance is given of it in whole or in part.
45. The judgment in Fajaleh Ali Miah v. Kamaruddin Bhuya I.L.R. 13 Cal. 170 appears to show that the Judge in the Court below is under a mistake in supposing that Wilson, J., ever held that one clause of the agreement, such as there is in this suit, could be brought in and specifically performed under Section 375. Nor does the decision of Mr. Justice Trevelyan support the present judgment. In a suit for partition, the parties agreed to divide the property in a certain way; one of them receded from the agreement, and Mr. Justice Trevelyan, though considering the decision in Ruttonsey Lalji v. Poori Bai I.L.R. 7 Bom. 304 good law, decided the case on the authority of Pryor v. Gribble L. R. 10 Ch. App. 534. I concur in that decision. The case of Chogemull v. Kuppur Chand (unreported) I understand from Counsel at the bar, was settled out of Court. With reference to the Court-minute which porports to be an expression of the opinion of the Judge in the case of Krishna Bibi v. Debt Pershad Agrwallah (unreported) I am not aware what was the result of that case or whether any decree was entered up. I am inclined to think, although with some hesitation, that a Court-minute of the Judge's opinion is not a judgment. Neither the decree nor the nature of the suit is given.
46. I now turn to the cases in the other Courts. The first case relied on is to be found in Ruttonsey Lalji v. Poori Bai I.L.R. 7 Bom. 304.
47. In that case the suit was brought to restrain the defendants from building a projected house in such a way as to interfere with the plaintiff's enjoyment of light and air. While the suit was pending a compromise was entered into outside the Court between the plaintiff and the first defendant in regard to the suit, and also in regard to the rights of the parties to a lane close by. When the decree was to be entered up, the plaintiff declined. A rule was taken out calling upon the plaintiff to show cause why the compromise should not be entered up under Section 375 of the Code of Civil Procedure, and on the rule coming on for hearing the Judge said that he had not been able to find any instance of the application of this section. He dealt with it as a case of first impression, and looking to the powers given by Statute to the Supreme Court of Judicature in England, be thought that Section 375 should be interpreted largely, the result of which would be to give the Mofussil Courts in this country even greater powers than the High Court of Judicature in England possessed. With great respect to the Judge I think the statutory powers given to the Supreme Court of Judicature in England is not a safe basis on which to interpret Section 375 of the Code. No Advocate in this Court would rgue it. One thing also seems to have been forgotten in that case, namely, that whether an agreement is enforced by suit or by motion in England; the result is not the same as in this country. If. Section 375 applies to any contested matter, the result is that the decree is final and the losing party has no relief. The history of this section was not discussed, and the Judge thought it was the outcome of the Act of 1873 in England, whereas I think it was an application of the very limited powers given to the Mofussil Courts to the Original Side of the High Court.
48. Let me put this point in another way. So long as the Supreme Court existed, an applicant could not appeal to Act VIII of 1859, for that Act was only, an Act to simplify the procedure of the Civil Courts in the Mofussil and had no application to the Supreme Court. The High Court in administering the equitable jurisdiction of the Supreme Court possesses no more powers than those of the Supreme Court, and can do no more than that Court could. It cannot appeal to Act VIII of 1859. When by the Act of 1877 the modified section of Act VIII of 1859 was made applicable to the High Court, the Court exercising the equitable jurisdiction of the Supreme Court could not appeal to it any more than the Supreme Court could. The two systems of procedure were separate and perfectly distinct. The High Court could proceed on one or the other, but could not mix them up.
49. The next case is that of The Goculdas Bulabdas Manufacturing . Company v. Scott. I.L.R. 16 Bom. 202. In that case the same line of argument was followed. Several decisions under the statutory powers given to the Supreme Court of Judicature in 1873 were referred to, and it was considered that the Legislature in this country had given all the Courts in India larger powers than the Legislature in England had given to the Supreme Court, and that the Court could enforce by motion an agreement entered into out of Court and give a decree under Section 375 from which there lay no appeal. Following those decisions the Bombay High Court in the case of Samibai v. Premji Pragji I.L.R. 20 Bom. 304 decided that Section 375 applied to a suit where the case had been submitted to arbitration and an award arrived at. I confess that I should have some difficulty in holding that an agreement and a judicial decision such as an award falls within the terms of Section 375.
50. I now turn to the decisions of the Madras Court. In the case of Karuppan v. Ramasami I.L.R. 8 Mad. 482 the plaintiff sued the defendants to compel them to execute a conveyance of certain lands. The defendants pleaded that the matter in dispute had been settled by agreement executed by the plaintiff to the effect that he transferred the lands to the defendants and under-took to have the suit dismissed on a petition for withdrawal. The Munsif held that as the defendants had performed their part of the agreement, the plaintiff must be held by the agreement, and dismissed the suit. The District Judge reversed the decree on the ground that as both parties did not consent in Court, it could not be looked upon as a compromise. The High Court, following the case of Ruttonsey Lalji v. Poori Bai I.L.R. 7 Bom. 304 held that the Judge should try whether the engagement should be entered up and then apply Section 375 of the Code. In that case the defendants set up a document destructive of the cause of action set forth by the plaintiff, and I can see no connection between that suit and the present, but, as at present advised, I do not think it was a case under Section 375.
51. A much more important case is that of Appasami v. Manikam I.L.R. 9 Mad. 103 decided by the same Judges. In that case their Lordships dissented from the view taken in the case reported in Harasundari Debi v. Dukhinessur Malia I.L.R. 11 Cal. 250 and considered that such portion of the judgment as referred to Section 375 was an obiter dictum as the case could have been decided on other grounds. I am not aware of any authority, except this case, which says that where several reasons are given in a judgment for disposal of a suit, and each and every one of those reasons supports the decree, a Judge can pick out any one of those reasons more than others and say it is an obiter dictum. Since the decision of Her Majesty in Council in the case of Run Bahadur Singh v. Lucho Kocr I.L.R. 11 Cal. 301: L. R. 12 I. A. 23 it appears to me difficult to support any such contention. Their Lordships then., seek to deal with the case very ranch on the lines of the Bombay case. They point out that the English Courts have certain powers, and say that, in their opinion, Section 375 has given larger powers to the Courts in this country. Their Lordships refer to the fact that Section 375 is a modification of Section 98 of Act VIII of 1859; but I cannot find that any reference has been made in their judgment to the numerous cases decided under that section or to the history of it.
52. The next case is that of Venkatappa Nayanim v. Thimma Nayanim I. L R. 18 Mad. 410. In that case a suit was instituted for partition of a zemindari and an agreement was filed providing for the settlement of the dispute and many other things. The first Court decided the case under Section 375. In the High Court the Judges approved of the decision arrived at in the case of Ruttonsey Lalji v. poori Bai and divided the case into two parts allowing the appeal as to so much of the agreement as did not refer to the suit but not as to the other portion Their Lordships disagreed with the ruling of WlLSON, J., in fajaleh Ali miah v. Kamaruddin Bhuya I.L.R. 13 Cal. 170.
53. I have already pointed out what the invariable practice was under Section 98 of Act VIII of 1859. Not one of the cases decided either by the Madras or Bombay High Court-has dealt with that question. The grounds of decision in those cases were greatly based upon the powers given by Statute to the English Courts. They do not seem to have realised that originally the section only applied to Mofussil Court where motions were unknown, and they do 'not take notice of the fact that although the Supreme Court of Judicature could enforce an agreement by way of motion, still it was not bound to do so, and that if it did so by way of motion the judgment would not be final. According to the interpretation they have put upon Section 375, the Judge has in a contested case no option but to give a decree, and that decree is final. I regret to say that I am not prepared to agree in that conclusion. It appears to me that their Lordships have combined two distinct forms of procedure which have come down from different Courts and created a third which never existed in any Court. In my opinion Section 375 does not apply to such a case.
54. The reference, however, is not expressly confined to a discussion as to whether the Court can enter up such a decree under Section 375 of the Code. It is to the effect that whether, when parties to a suit have by an agreement adjusted the subject-matter of the suit, the Court can or cannot, by an order made in the suit, order such agreement to be recorded and make a decree in accordance with it, if one of the parties to such agreement objects. I think that question depends upon the powers given to this Court under the Letters Patent. There are several cases both in this High Court and the High Court in Madras, decided by Judges who were Judges of the Supreme Court, in which it has been held that where the Code does not provide for a matter arising in a suit the Court must adapt the procedure of Courts of Equity, and that, in the present case, means that they must follow the procedure of the High Court of Chancery in England, Suroop Chunder Hazra v. Troyloko Nath Roy 9 W. R. 230; Clark v. Ruthnavaloo Chetti 2 Mad. H. C. 296; Kistnasamy Pillai v. Municipal Cmmissioners for Madras 4 Mad. H. C. 120.
55. The power of that Court is set out in the judgment of Jambs, L. J., in Pryor v. Gribble L. R. 10 Ch. App. 534 and amounts to this, that as a matter of practice where the agreement is simply in regard to the subject of the suit and nothing more, the Court would enforce it by motion.
56. My answer then to the question is: 1st.---That this is not a case under Section 375 of the Civil Procedure Code at all. 2nd.---That the High Court on its Original Side exercising the equitable jurisdiction of the High Court of Chancery would not, on a contested motion, give a decree of this nature.
57. I agree with the judgment delivered by the Chief Justice.
58. Assuming that the question referred to the Full Bench is restricted to the case of an order which purports to be made under Section 375 of the Code, I am of opinion that the question should be answered in the negative.
59. With all due respect to the learned Judges of this Court and of the High Courts of Madras and Bombay, who has taken a contrary view, I am inclined to think that the case of Harasundari Debi v. Dukhinnessur Malia I.L.R. 11 Cal. 250 was rightly decided.
60. Section 375, in my opinion, applies only to a casein which the adjustment. or satisfaction is made in Court, and cannot and ought not to be extend so as to specifically perform agreements made out of Court.
61. Apart from the considerations which have been discussed in the judgment of Mr. Justice O'Klnealy (a judgment in which I fully concur) it seems to me that there are three main reasons why this view of the section is to be (sic):
(1). In the first place the section makes no provisions for any (sic) a case in which one of the parties resiles from an agreement which he (sic) made out of Court. Assuming that the section applies to such a case, if t (sic) . agreement is brought into Court, the Court must under the strict language on-the section record it as a matter of course and make a final decree upon it. It seems to me to follow that the section was not intended to apply to cases in which an inquiry would be admittedly necessary.
(2). In the next place the agreement made out of Court may refer (as in the present case) to other matters besides that of the adjustment of the suit, and it is difficult to believe that the Legislature ever intended such an agreement to be specifically performed by a final decree in respect to one of its provisions, while the parties were left to enforce the other provisions by a separate suit.
(3). Lastly the fact that the decree to be made upon the adjustment is to be final shows to my mind that the Legislature contemplated that the parties to the adjustment should be assenting parties to the decree at the time it is made.
62. The word 'adjusted' in this Section means in my opinion adjusted in Court, If the intention was that an agreement made out of Court might be brought into Court to be converted into a final decree, the language of the section would I conceive have been worded very differently. It would then have run in some such form as this:
If the parties agree that a suit shall be adjusted, etc.' The use of the words 'if a suit be adjusted' convey to my mind the idea that the adjustment must be by consent at the time of the decree.
63. The question referred to us for decision is, ' whether when the parties to a suit have by an agreement adjusted the subject-matt (sic) - of the suit the Court can, or cannot, by an order made in the suit, (sic) such agreement to be recorded and make a decree in accordance with it, if (sic) -ee of the parties to such agreement object.' The question is asked evidently with reference to Section 375 of the Code of Civil Procedure, and the answer to it in my opinion should be this, that the Court can under Section 375 of the Code of Civil Procedure order the agreement to be recorded and make a decree in accordance therewith, if after hearing the objection raised it disallows the same.
64. Examining the language of the section, as we must in the first instance do in construing it (see Norendra Nath Sircar v. Kamalbasini Dasi I.L.R. 23 Gal. 563 I find it very difficult to take this case out of its scope. The question put to the Full Bench assumes that the suit has been adjusted by a lawful agreement, and if that is so, the case comes within the section unless there is anything in the context or in reason to show that the section is not intended to apply to any case in which one of the parties to the agreement objects to its being recorded. Mr. Hill for the appellant contends that there are reasons suggested by the letter of the section as well as by its spirit why the section should be limited in its application to cases in which both z (sic) ^miartios consent to the agreement being recorded. The reasons urged by him may be shortly stated thus:
65. In the first place, the section only provides that the agreement, compro (sic) -at in se or satisfaction shall be recorded, but it contains no provision such as we parts d in certain analogous sections of the Code, namely, Sections 150, 151 and the (sic) f*153 for notice to parties or determination of these objections, and this shows rulin at Section 375 was intended to apply only to cases where all parties consent 13 Cal. agreement, compromise or satisfaction being recorded.
66. I has the second place, the section directs the Court to pass a decree in 98 of Afdance with the agreement so far as it relates to the subject-matter of the or Bot, thus indicating that in making the decree the Court may have to split the in Agreement into parts and give effect to only one of such parts, namely, that which F relates to the subject-matter of the suit, a mode of dealing with agreements which is neither usual nor just; and this shows that the section is intended to be limited to cases in which all parties consent to the decree being made.
67. In the third place, the section makes the decree passed in accordance with a compromise final, and this shows that a decree under this section is intended to be made only when all parties consent. Por if it were otherwise, the determination of the objections raised by the non-consenting party, which may involve difficult and intricate questions of fact and law, would not have been made final.
68. In the fourth and last place, if this section were to have the operation contended for by the respondent, the party who is sought to be bound by the agreement will lose the benefit of the discretion which the Court might have exercised in his favour in not decreeing specific performance, if a suit for specific performance of the agreement had been brought.
69. These points have been considered to some extent in Harasundari Debi v. Dukhinessur Media I.L.R. 11 Cal. 250 cited for the appellant, and very fully in Goculdas Bulabdas Manufacturing Co. v. Scott I.L.R. 16 Bom. 202 relied upon by the respondent.
70. I do not think that much weight should be attached to the first t mentioned reason. If the absence of any provision in the section for the a determination of objections suggests an inference that the section is intended to Eapply only to cases where no objection is raised, the strength of the inference of must be very slight, seeing that there is room for a contrary inference, namely, Native where the Court is directed to pass a certain order, it has by implication Kistnaer to determine all necessary matters to enable it to pass that order. And in the present instance, the strength of the inference sought to be raised is wholly counter-balanced by the fact that the Court must in any case determine at least one question, namely, whether the agreement or compromise is lawful.
71. The second reason is no doubt entitled to more consideration. Where an agreement or compromise involves many and complicated matters, some only of which relate to the suit which is sought to be disposed of in accordance with it, and one of the parties does not consent to a decree being made upon it, the Court may have to perform a difficult and delicate task in passing a decree under Section 375. But is the difficulty of the task a reason why it should not be performed? And is the difficulty removed by requiring the party seeking to enforce the agreement to bring a fresh suit? No doubt in such fresh suit the Court may deal with the entire agreement, but so may it do in the suit which is sought to be determined in accordance with the agreement; and if it finds that the agreement is such that it will be inequitable to deal separately with that part of it which relates to the suit, while other parts of it remain to be performed by the opposite side, it may either refuse to make a decree in the suit on the ground that the sui (sic) 'arjj has not been actually adjusted, but there has been only an agreement to a'dju (sic) je j, it, or it may make a conditional decree relating to the subject-matter of t (sic) 0D suit to be carried into execution only upon the other side performing his p;(sic) on ', of the agreement. The second reason too does not therefore stand in t (sic) $ jjftVi way of our adopting the view I take.
72. Nor is the third reason of any greater effect in controlling the scope the section. Einality under Section 375 attaches to the decree pointed out by Telang, J., in the case of Gokuldas Bulabdas Manufactur (sic) Co. v. Scott I.L.R. 16 Bom. 202 only so far as it is in accordaric^ (sic) kpjj ^gj the agreement, compromise or satisfaction, an appeal being allowed so (sic) l.fche sui questions such as whether there has been any agreement, compromise satisfaction, whether the same is lawful or not, and whether the decree is (sic) ir.. accordance therewith or not are concerned, upon the same principle as that upon which appeals have been allowed in cases in which decrees are made under Section 522---see Joy Prokash Lall v. Sheo Golam Singh I.L.R. 11 Cal. 37.
73. With reference to the fourth and last reason relied upon by Mr. Hill, it (sic) rja' addition to what has been said by Telang, J., in Gokuldas Gulabdas Mamn (sic) facturinq Co. v. Scott I.L.R. 16 Bom. 202 I may observe that the Legis (sic) ,'j lature might have thought it unnecessary to leave the enforcement of an agreement by which a pending suit is adjusted in the discretion of the Court in the same way as the granting of a decree for specific performance of at ordinary agreement is left, for this simple reason that an agreement to adji (sic) us'irag a pending suit is less likely to be entered into without full realisation of it consequences and without legal advice than any other agreement.
74. While thus the main reasons urged in favour of the limited construction of Section'375 are insufficient and inconclusive, the reasons in support of the opposite view, appear tome to be far more cogent. I have already observed., that the language of the section is entirely in favour of that view. If the object of Section 375 had been simply to authorize the Court to make decrees by consent of parties, the Legislature could very easily have said so in a few plain words, instead of employing what in that view was mere periphrasis, and omitting altogether to use the words 'by consent of parties.' Again, while I provision is made in the Code for the adjustment or satisfaction of a decree made out of Court, being recorded by the Court at the instance of either part-notwithstanding that the other party may not consent (see Section 258), the (sic) would be no provision for recording the adjustment of a suit before decree (sic)ro Section 375 is to receive the limited construction put on it by the appellant. This, I think, would an unreasonable view. It is said that there can be nothing wrong in this, as the party seeking to enforce the agreement or compromise can always bring a separate suit for that purpose. But what is the advantage gained by that procedure? The pending suit will have to be stayed until the suit brought for enforcement of the compromise is disposed of; and then if the latter suit is decreed, the former will have to be decreed separately in terms of the compromise. The construction I adopt leads to the same result and avoids multiplicity of suits.
75. That construction has been invariably adopted by the High Courts of Bombay and Madras as the cases cited in the referring order show, and also by this Court on the Original Side as is shown by the unreported cases cited in the argument.
76. Upon reason and authority, therefore, I think the construction contended for by the respondent is correct; and I would respectfully dissent from the decision in Harasundari v. Dukhinessur Malia I.L.R. 11 Gal. 250 so far as takes the contrary view.