AMBALAL CHUNTHABHAI PATEL Vs. SOMABHAI BAKORBHAI PATEL

JUDGEMENT

(1.) THIS appeal arises out of proceedings for the execution of the compromise decree in Suit No.196 of 1938 passed by the Extra Joint Second Class Subordinate Judge of Nadiad. The plaintiffs who filed that suit are the owners of survey Nos. 141|1 and 135|2 + 1|1 of Mahudha and the defendants are the owners of survey Nos. 141|2, 135|2 and 1351|2, while survey No.135|1|3 belongs jointly to them. The plaintiffs claim a right of way through the defendants' survey No.135|1|2 to go to their survey No.135|2 + 1|1 while the defendants claim a right of way through the plaintiffs' survey Nos. 135|2 + 1|1 and 141|1 to go to their survey No.135|1|2. Both denied each other's rights. The plaintiffs therefore filed Suit No.196 of 1938 for a declaration of their right of way and an injunction restraining the defendants from obstructing them in its use and also restraining them from going through their lands survey Nos. 135|2+1|1 and 141|1. The suit ended in a compromise decree, providing that the defendants should sell to the plaintiffs their survey No.135|1|2 and their interests in survey No.135|1|3 for Rs. 900 to be paid before April 27, 1941, and that on receipt of the amount the defendants should pass a registered sale-deed in favour of the plaintiffs and deliver possession. The compromise application was signed by the plaintiffs and the defendants' pleader Mr. Barot, but not by the defendants themselves. It is stated that Mr. Barot had been specially authorised to compromise the suit. That authority appears to have been given to him in general terms in the vakalatnama itself when he was engaged by the defendants to appear on their behalf. When the defendants came to know about the compromise, they protested and made an application under Section 151 of the Civil Procedure Code to have the decree set aside on the ground of fraud and also on the ground that Mr. Barot had not been authorised by them to enter into a compromise. That application was rejected and the defendants were referred to a civil suit. The plaintiffs then deposited Rs. 900 in Court and filed this darkhast to obtain a sale-deed from the defendants and recover possession of their lands in execution of the compromise decree. The defendants contended that the decree was illegal and inexecutable as their pleader Mr. Barot had not been authorised by them to enter into a compromise and that the compromise dealt with what was outside the scope of the subject-matter of the suit. The executing Court held that it could not go behind the decree and consider whether it was legal or not, and, therefore, directed the defendants to execute a sale-deed in accordance with the terms of the decree within fifteen days. In appeal the learned District Judge held that the matter was res judicata by reason of the dismissal of the defendants' application under Section 151 of the Civil Procedure Code, 1908, to have the decree set aside and that in any case the executing Court could not go behind the decree. The appeal was, therefore, dismissed. In this Court it is fairly conceded by Mr. Shah that there can be no bar of res judicata to the defendants' contentions, since their application under Section 151 was dismissed on the ground that the proper remedy for them was to file a suit to have the decree set aside.

(2.) THE decree under execution is attacked by the defendants on two grounds, that their pleader Mr. Barot had no authority to enter into such a compromise and that the compromise dealt with matters outside the scope of the suit. THEre is, no doubt, some force in these contentions.

(3.) AS regards the other ground also, it is obvious that some of the terms of the compromise were outside the scope of the suit. Mr. Patel has relied upon the ruling of the Privy Council in Hemanta Kumari Debt v. Midnapur Zamindari Company (1919) L.R. 46 I.A. 240 : s.c. 22 Bom. L.R. 488. in support of his contention that a decree passed on such a compromise is without jurisdiction. In that case there had been a compromise between the plaintiff and the defendant, and amongst other terms of the compromise was one that if the plaintiff succeeded in obtaining a decree against Government in respect of certain lands which were not the subject matter of the suit, she would grant a lease of them to the defendant on the same conditions as those agreed to with regard to the land in his possession. Subsequently, although the plaintiff succeeded in the suit against Government, she refused to grant a lease to the defendant. The defendant thereupon filed a suit for specific performance of the agreement, The principal question which was raised in the trial Court was whether the consent decree was inadmissible in evidence for want of registration. That point was decided against the appellant by the Subordinate Judge and by the High Court and the appeal to the Privy Council was principally concerned with that question. In the course of the judgment, the Privy Council referred to Section 375 of the Civil Procedure Code of 1882 (corresponding to Order XXIII, Rule 3, of the present Code) and stated that under the terms of that section it was plain that the agreement or compromise, in whole or in part, was to be recorded, and the decree was then to confine its operation to so much of the subject matter of the suit as was dealt with by the agreement and laid down a rule as to the manner in which the terms of the section were to be carried out in the case of compromise decrees, remarking that, although the operative part of the decree would be properly confined to the actual subject matter of the then existing litigation, the decree taken as a whole would include the agreement. It was further observed (p. 246): This in fact is What the decree did in the present case. It may be that as a decree it was incapable of being executed outside the lands of the suit, but that does not prevent it being received in evidence of its contents.