GOVINDAMMAL Vs. MARIMUTHU MAISTRY

JUDGEMENT

(1.) THIS appeal is directed against the decree and judgment of the learned subordinate Judge of Cuddalore in O. S. No 40 of 1952.

(2.) THE facts are: The plaintiff Govindammal filed two suits in the Chidambaram district Munsif's Court, O. S. Nos. 151 of 1950 and 180 of 1950, relating to two sets of properties against Marimuthu Maistri, the first defendant, and others. After the said suits came on for trial, the parties reported a settlement of both the suits. An endorsement was made on the plaints in both the suits whereby the parties agreed to allow the plaintiff to have a decree in respect of the properties in O. S. No. 180 of 1950 and the claim in O. S. No. 151 of 1950 was allowed to be dismissed without costs. The plaintiff's father has attested the endorsements, as he was admittedly looking after her interests. The vakil for the plaintiff also signed the endorsements and consented to the dismissal of O. S. No. 151 of 1950. On the ground that the vakil had no authorisation to enter into any compromise and that her father was also not her authorised agent, this Govindammal filed a review application for setting aside the order of dismissal of the suit O. S. No. 151 of 1950 in the Chidambaram district Munsif's Court itself. That was not prosecuted and went by default. She subsequently filed an appeal in the District Court out of time. The application for excusing delay was dismissed. Thereafter she has filed this suit to have the decree in O. S. No. 151 of 1950 set aside. The learned Subordinate judge came to the conclusion that the suit for partially setting aside the compromise was devoid of merits and secondly, that in fact the vakil had power to enter into the compromise and that even if there is no express authority to enter into the compromise, under the inherent authority impliedly given to the vakil, he had the power to enter into the compromise on behalf of the party. Therefore, he dismissed the suit. Hence this appeal. That on merits this plaintiff has no case can admit of no doubt whatsoever. O. S. Nos. 151 of 1950 and 180 of 1950 were simultaneously compromised. The compromise in respect of both the suits was part and parcel of the same transaction, each forming the consideration for the other. The plaintiff now wants to retain the advantage of the decree in O. S. No. 180 of 1950 and also wants to reopen the claim made by her in O. S. No. 151 of 1950, which was negatived under the compromise. She cannot be allowed to approbate and reprobate. If she elects to stand by the compromise, she must agree to the same in its entirety. She cannot be allowed to enjoy the advantages conferred under one decree and refuse to abide by the agreement under another decree. There are no merits in her claim. In this case the vakalat filed in O. S. No. 151 of 1950 has been exhibited as Ex. A. 1 and that vakalat shows that the vakil had power to sign the compromise and also withdraw the suit. ('rajeenama Kaiyezhuttu | Shaiyyavum Wapees wangavum" ). It was strenuously contended before the learned Subordinate Judge that even in cases where the vakalat authorised the counsel to enter into a compromise, he has no right to enter into any settlement without the consent and approval of the plaintiff. In this connection the larger question was raised, viz. , the powers of vakils to enter into compromise, even if not expressly authorised in that behalf.

(3.) THE following authorities and extracts from standard publications on professional conduct, have been brought to my notice : (1) Jagapati v. Ekambara Mudaliar, ILR 21 Mad 274 (A), (Subramania iyer and Benson JJ.):