1. This is an appeal against an order passed by the Subordinate Judge of Faridpore under Order XXIII, Rule 3, of the Code of Civil Procedure, an order recording a petition of compromise. The plaintiffs in the suit in which this order was passed asked for a declaration that certain lands, described in the plaint by the numbers of the days in the settlement map, appertained to char darai, of which they claimed to be entitled to a nine-annas odd share. They also asked for recovery of possession and mesne profits. There were originally 16 defendants but defendant No. 16 died during the pendency of the suit and his three minor sons were substituted for him. All these defendants except defendants Nos. 3, 9 and 12 contested the suit. The plaintiffs' right to the share claimed was not disputed. Ten issues were framed on the pleadings of the parties, but we are not concerned with these and they have not been included in the paper-book. It is sufficient here to state that the important point in dispute between the parties was the boundary of char darai. The suit was instituted on the 13fch May 1910. Issues were framed on the 30th July 1910 and on the 23rd November 1910, a commission for local investigation was issued to Babu Jatindra Mohan Banerji, Civil Court Amin. Owing to the lands being under water most of the year and on account of the time taken to substitute the heirs of defendant No. 16, the Amin did not commence work before the 20th January 1912, when he was directed by the Court to start work as soon as possible. After this the parties began to discuss terms of compromise. According to Babu Priya Sankar Majumdar the plaintiff No. 1, the son of Keshab Chandra Lahiri defendant No. 8 came with a proposal for compromise in Magh 1318. This plaintiff expressed his willingness to compromise and arranged for a conference at which representatives of the plaintiffs and of the three different sets of defendants were present. The plaintiffs were represented by Nagendra Nath Banerjee, manager of plaintiff No. 1. The Sagar Kandi Datta Babus defendants Nos. 1-7 were represented by Amin Ram Chandra Tarafdar and Sasadhar Sanyal, the Lahiri Babus defendants Nos. 8-13 were represent-by Tara Nath Ray, and the Parasadanga Babus defendants Nos. 14-16 (kha) were represented by Hem Chandra Majumdar. Apparently nothing was then settled. The parties filed a petition in Court on February 15th, asking that the Amin's work might be stopped as they were going to compromise. After allowing a ten days' adjournment the Court refused to stop the Amin's work any longer and this probably eaused negotiations to be temporarily suspended. The Amin submitted his final report on the 12th August 1912. In the following month Hem Chandra Majumdar and Tara Nath Ray went to plaintiff No. 1 and again proposed a compromise in accordance with the delineations in the Civil Court Amin's map. The plaintiff No. 1 refused to consent to this and asked them to bring their employers to him and to see whether they could come to terms on the basis of the settlement map. During the Christmas holidays of 1912, Hem Chandra Majumdar and Tara Nath Ray again came to the first plaintiff and discussed terms of compromise with him but went away without giving any final word. After this terms of compromise were discussed by the servants of the parties to the suit. Petitions for time to enable the parties to compromise were filed in Court on the 3rd December 19)2, 20th. January, 4th February, 3rd and 10th March 1913. Of these petitions, only that of the 3rd March contains any mention of terms of compromise. It is there stated that it had been settled that the boundaries of the disputed char darai will be settled according: to the Dparah Survey boundary line of 186S-69 as depicted in the map prepared at the recent Settlement survey and that settlement had not been arrived at in certain other matters. A few days after the third March Nagendra Nath Banerjee manager of plaintiff No. 1, Priya Shankar Majumdar, came to his master at his Calcutta residence; and told him Mat, they were all willing to compromise on the basis of the settlement map. Priya Sankar, then sent two telegrams, one to Ranajjt Lahiri, defendant No. 13, and the other to the manager of the Parasadanga Estate. Ranajit Lahiri only replied and his telegram Exhibit 4 was in the following terms: We gave Tara Nath our terms if you agree compromise to be filed otherwise Taranath to take further instructions, Ranajit.' The date of this telegram is the 8th March. On the 9th March there was a meeting of some of the Pleaders and the servants of the parties to discuss terms of compromise. The discussion took place at the basha of Hriday Nath Chakravarty, Pleader for the plaintiffs. Prosanna Kumar Roy, Pleajer for the Parasadanga and Lahiri defendants, and-Tara Nath Ray, an Amin who was employed' by all the defendants, were present on behalf of the defendants. Nagendra Nath Banerjee, the plaintiffs' manager, Hriday Nath and Jogesh Chandra Chakravarty, plaintiffs' Pleaders, Peary Banerjee muktear and other servants of the plaintiffs were present on the plaintiffs' side. According to the plaintiffs' case everything then was settled except the sum of money to be paid by the defendants to the plaintiffs. About this the Pleader Prosanna Kumar Roy took instructions by telegraph from the defendant Ranajit Lahiri and obtained his consent to increase the amount Rs. 2,200 previously settled to Rs. 2,500. On the 10th March Hem Chandra Majumdar, who was looking after; the case on behalf of the Parasadanga defendants, was informed of the terms that had been settled the previous night and consented to the application that was made to the Court for a further adjournment for seven, days, for writing out the solenama-and for the signature of the parties.' On the night of the 10th March 1913 there was another meeting at Hriday Nath Chakravarty's basha and a draft of the solenama was prepared in the presence of Tara Nath Ray and Hem Chandra Majumdar This draft was shewn to the defendants' Pleader Prosanna Kumar Roy on the 11th or 12th March and he made soma additions and: alterations. A fair copy of the petition of-compromise was prepared and also, two vakalutnamas, embodying, the terms of the settlement. The vakalutnama prepared for the plaintiffs was signed by them on the 15th March 1913. The vakalutnama prepared for the defendants was not signed by them. On the 17th March, the date fixed for the hearing of the suit, both parties filed petitions in Court. The plaintiffs filed the petition of compromise that had been prepared and asked that, as the defendants would not sign it though they had agreed to it, the suit might be decreed according to its terms after taking evidence. The defendants' petition was filed, we are told, before that of the plaintiffs but the point is immaterial. In it the defendants accused their agent Tara Nath Ray of acting beyond his powers and of having made misrepresentation to them when settling the terms of compromise. They objected to the statement in the petition of the 3rd March that they agreed to accept the boundary line depicted in the Settlement map, but said they had no objection to the suit being decreed for the share claimed by the plaintiffs according to the boundary line shown in the case map prepared by the Civil Court Amin. The Court then proceeded to take evidence on the additional issue No. 11 only 'whether a lawful compromise has been effected between the parties subsequent to the institution of the suit.' He granted a decree against the major defendants in the terms of the draft petition of compromise filed by the plaintiffs. The suit against the minor defendants has been postponed pending the decision of this appeal.
2. There can now be no doubt that when one party alleges and the other denies that a suit has been settled by a lawful agreement out of Court, the Court has power to decide whether there has been such a settlement and, if this question of fact is decided in the affirmative, to grant a decree in accordance with the agreement. The Full Bench decision of this Court to this effect in the case of Brojudurladh Sinha v. Ramannth Ghose 24 C. 908 : 1 C.W.N. 597 : (F.B.) has been now given effect to by the alterations made from the language of Section 375 of the Civil Procedure Code of 1882 in Order XXIII, Rule 3, of the Code of 1908. On this question of fact whether a lawful compromise had been effected between the, parties to the suit, we are unable to agree with the learned Subordinate Judge. So far as the facts a to the negotiations for the compromise are concerned, we think he has taken a correct view of the evidence and where there is any difference between the stories told by the plaintiffs and defendants' witnesses, the evidence of the former is to be preferred. But where the lower Court has erred is in holding that the persons who were negotiating the terms of the compromise had power to bind the actual parties to the suit to accept the draft compromise prepared by them. His reference to the case of Tara Chand Samanta v. Chundra Sekhar Banerjee 12 C.W.N. (sic), as supporting his decision, shows that he has not appreciated this point. In that case the Pleaders who effected the compromise were authorised to do so on their vakalutnama, In the present case none of the persons who took part in the negotiations were authorised to effect a compromise that was binding on the parties to the suit. The vakalutnamas of the Lahiri and Datta defendants contained no power to compromise. The Parasadanga Shaba Choudhry defendants filed two separate mkalutnanias, one executed by the defendants Nos. 15 and 16 which contained no power to compromise and another executed a month later by the same two defendants and also by defendant No. 14. This last empowers the Pleader accepting it 'to file all sorts of soknamas, etc.' This vakalutnama was accepted by the Pleader Prosanna Kumar Roy on the 29th July 1910, and it has not been suggested that this vakalutnama rendered his approval of the draft petition of compromise binding on all the defendants. It must be remembered that he was not the retained Pleader of the Datta defendants. From the history given above of the negotiations with a view to compromise, it is clear that they never passed from the stage of negotiations to that of a finally settledcompromise. The parties who took the principal part in these negotiations on the defendants side were Ranaiit Chandra Lahiri defendant No. 13 Tara Nath Ray who worked as Amin for all the defendants and was the principal agent on behalf of all the defendants to look after their interests in Court during this suit, Hem Chandra Majumdar naib of the Parasadanga defendants and Prosanna Kumar Roy, the Pleader of the Lahiri and Parasadanga defendants. Though all the defendants appear to have been content to leave the general conduct of the litigation to these persons, it. cannot be inferred from this that they were bound to accept any terms of compromise that these persons might arrange. They had implied authority to act on behalf of all the defendants so long as the litigations proceeded in the ordinary way. But they could not consent to a decree against the defendants on arranged terms without special authority. This was recognised by the negotiating parties, as they arranged not only for a petition of compromise but also for special vakalutnamas embodying the terms of this compromise. This shows that the terms arranged required the consent of the actual parties to the suit before they could be regarded as finally settled. Though we are not inclined to accept the reason given by Ranajit Chandra Lahiri for the failure of the compromise at the last moment, the fact remains that some of the defendants had the option of accepting or refusing the terms settled and were not bound to give any reason for their refusal. The terms settled were that all the plaintiffs and all the defendants should be bound by the compromise. Consequently if any of the defendants refused to accept the terms Ranajit Chandra Lahiri also would no longer be bound There is considerable force in the contention urged on behalf of the appellants that apart from the facts in dispute they are not bound to accept the compromise, because it is incomplete on account of there being minors among both the plaintiffs and defendants. So far as the minor defendants are concerned, they are expressly excluded from the compromise decree that has been passed and the suit as against them remains pending. As regards the minor plaintiffs the consent of the Court was not taken to their joining in the compromise and they will be able, if they so wish, to have it set aside as against them when they come of age. The consequence is that even if the terms settled are held to be binding on all the major defendants, as held by the lower Courts, the decree passed is not in accordance with those terms since it does pot finally settle this litigation between all the parties to the suit.
3. We accordingly decree this appeal and reverse the order of the lower Court passed under Order XXIII, Rule 3, of the Code of Civil Procedure. The decree passed in the terms of the petition of compromise is set aside and the suit will proceed against all the defendants. As we find that the appellants have misrepresented important facts we order the parties to bear their own costs in this appeal.
D. Chatterjee, J.
4. I agree.