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.) Although Mr. Barot may have been authorised by his vakalatnama to compromise the suit, his authority did not extend to matters which were not the subject-matter in the suit. As observed by Lord Atkin in Sheonandan Prasad Singh V/s. Abdul Fateh Mohammad Reza counsel in India have the same implied authority to compromise an action as have counsel in England : Although a counsel has complete authority over the suit, the mode of conducting it, and all that is incident to it-such as withdrawing the record, withdrawing a juror, calling no witnesses, or selecting such, as in his discretion, he thinks ought to be called, and other matters which properly belong to the suit and the management and conduct of trial-he has not, by virtue of his retainer in the suit, any power over matters that are collateral to it. For instance, in a suit on mortgage, counsel has no authority to agree that the mortgaged property be sold by one party to the other and bind the parties to the suit without their consent. In a case like this the Court should not make a decree in pursuance of Order XXIII, Rule 3, of the Civil Procedure Cade, 1908.