SATYA NARAIN Vs. BALCHAND

JUDGEMENT

(1.) THIS is an appeal by Satya Narain who was defendant in the suit against the judgment and decree of the Civil Judge, Ratangarh.

(2.) THE suit was filed by Balchand and other against Nemichand and his sons Ramprasad and Satya Narain on the 27th January, 1949. It was based on a foreign judgment passed by the Bombay High Court on the 11th March, 1948, against the three defendants. THE judgment and decree of the Bombay High Court was based on a compromise between the parties. THE suit was resisted by the three defendants, and two main points were urged on their behalf; (1) that the advocate who compromised the suit in the Bombay High Court had no power to do so and, therefore, the judgment dated 11th March, 1948, was not binding on the defen-dants and could not be treated as a conclusive judgment within the meaning of sec. 13 of the Code of Civil Procedure; and (2) that in any case, even if the advocate had power to compromise, a judgment based on a compromise could not be conclusive under sec. 13 C. P. C. in view of clause (b) of that section. Both these points were decided against the defendants, and the trial court passed a decree in accordance with the foreign judgment. THE present appeal is only by one of the defendants; the other two defendants having been made proforma respondents. THEre were other points raised in the trial court but we need not refer to them as learned counsel for the appellant has only urged these two points before us. We shall first deal with the question whether the advocate who appeared in the Bombay High Court had the power to compromise the suit on behalf of the defendants. THE facts in that connection are clear from the evidence of Framrose Hormasji Vakeel, P. W. 1, who was an attorney for the defendants in the suit on the original side of the Bombay High Court. His evidence makes it clear that the same firm of attorneys was representing the three defendants though they filed separate written statements. A perusal of the written statements filed on behalf of the defendants, however, shows that though the written statements were separately filed the defendants took exactly the same defence except that the sons said that they were not necessary parties to the suit. It was also admitted in the written statements that the three defendants formed a joint Hindu family of which the father, namely, Nemchand, defendant No. 1, was the karta. It further appears that the same advocate, namely, Sri H. M. Seerwi represented all the three defendants No. 1, namely. Nemchand, was present on the 11th March, 1948, in Bombay and there was a conference between him, his attorneys and the advocates. THEreafter the case came up before the Court, and defendant No. 1 Nemchand with his counsel was present there when the counsel compromised the suit. On these facts, it cannot in our opinion be said that the counsel had no authority to compromise the suit on behalf of all the defendants. Learned counsel for the appellant lays stress on a sentence in the statement of Framrose Hormasji Vakeel, P. W. 1, where he said that the compromise had been made at the instance of defendant No. 1 That, however, does not mean that there was no compromise on behalf of defendants No 2 and 3. To our mind, it only means that it was defendant No. 1 who was responsible for the compromise having taken place. But considering that the defendant No 1 was the father of defendants 2 and 3 and the manager of the joint Hindu family consisting of himself and his two sons, he was obviously compromise as the head of the family on behalf of them all. We may also point out that it is no one's case that the advocate was appointed on the basis of any written vakalatnama. As such he would have, in our opinion, the power to compromise the suit as held by their Lordships of the Privy Council in Sourendra Nath vs. Tarubala Dasi (l ). THEir Lordship laid down that - "an advocate of the High Court has, when briefed on behalf of a party in a subordinate court, the implied authority of his client to settle the suit. THE power to compromise a suit is inherent in the position of an advocate in India. THE considerations which have led to this implied power being established in the advocates of England, Scotland and Ireland, apply in equal measures in India. " THE only qualification which their Lordships laid down to this general power of an advocate to compromise was that "where the legal representative in Court of a client derives his authority from an express written authority, such as a Vakalatnama, different considerations may well arise, and in such cases their Lordships express no opinion as to the existence of any implied authority of the kind under discussion. " We are, therefore, of opinion, firstly, that Sri Seervi was authorised by defendant No. 1 on behalf of himself and his sons to compromise, and secondly, as Sri Seervi was appearing without any Vakalatnama. he had an implied authority on behalf of his clients to compromise the suit and there is nothing to show that there were any express directions of his clients to him not to compromise the suit, countermanding the implied authority which he had.