KESHAV RAMKRISHNA BHATT PHADKE Vs. SUBBA MANGA NAIK

JUDGEMENT

(1.) THIS is an application in revision against the order passed by the First Class Subordinate Judge of Karwar refusing to set aside the consent decree in suit No.221 of 1932, on the ground that the compromise application had been presented by the petitioner's pleader without any authority from him and without consulting him. The petitioner was the plaintiff in the suit. He sued for possession of certain property which had been purchased by him for Rs. 51. In the course of the suit a compromise application, exhibit 38, was put in, whereby it was agreed that the plaintiff should give up his claim on being paid Rs. 51 within three months. The application was signed by his pleader Mr. Nadkaini, and just above his signature he made a note "duly authorised by plaintiff. " A decree was then ordered to be drawn up in terms of the compromise on October 5, 1935. The plaintiff presented this application on November 21, 1936, stating that he had not authorised his pleader, Mr. Nadkarni, to enter into a compromise with the defendants, or to present the compromise application, and requesting that the consent decree should be set aside and the suit should be re-heard.

(2.) THE lower Court found from the vakalatnama given by the plaintiff to Mr. Nadkarni that the latter had been authorised "to sign a compromise petition. " THE lower Court Interpreted this clause to mean that Mr. Nadkarni was authorised to effect a compromise, and present a compromise application in the suit, and, therefore, following the ruling in Yusuf Isnudlbhai v. Abdulla-bhai Lalji (1931) I. L. R. 56 Bom. 231 : S. C. 34 Bom. L. R. 880, the lower Court held that, if any fraud had been practised by the pleader on the plaintiff, the latter's remedy was by way of a suit and not an application to have the consent decree set aside.

(3.) IN this case the lower Court has not recorded1 a finding that Mr. Nadkarmi was authorised by the plaintiff to enter into a compromise. The vakalatnama given to him does not give any specific authority to negotiate with the defendants and settle the terms of the compromise, but merely to sign the compromise application to be presented in Court. As observed in Thenal Ammal v. Sakkammal (1977) I. L. R. 41 Mad. 233, 235, "it is not the ordinary duty of an advocate to negotiate terms, without reference to his client, with the opposite party", and in that case it was held that a vakalatnama containing a provision authorising the Vakil "to present, if necessary, petitions for razinama, for withdrawal and for referring to arbitration, and to sign the razinama, etc. , petitions," does not give authority to the Vakil to enter into a compromise without reference to his clients. Mr. Nadkarni signed the compromise application, exhibit 38, in his capacity as plaintiff's pleader, and expressly wrote out above his signature that he had been duly authorised by the plaintiff. It is not dear whether he was authorised merely to sign the compromise application or authorised to negotiate the terms of the compromise. It is not clear also whether this particular application, exhibit 38, had ever been shown to the plaintiff, and his consent to its being presented in Court had been obtained. If no such consent was obtained, and if Mr. Nadkarni had not been specifically authorised by the plaintiff to negotiate the terms of the compromise with the defendants, then it follows on the principle laid down in Basangowda v. Churchigirigowda that the compromise which resulted in the decree was unauthorised. But these questions have not been gone into, and no finding has been recorded, for the simple reason that the vakalatnama itself showed that Mr. Nad-karai had been authorised to sign the compromise application. The mere authority to sign the compromise application is not sufficient unless the compromise was arrived at by the plaintiff himself. It is, therefore, necessary to have these points decided before the plaintiff's application can be disposed of The trial Court summarily dismissed the application merely on a reference to the contents of the vakalatnama, without ascertaining whether the compromise itself was duly authorised by the plaintiff.