Jagapathy Mudaliar vs Ekambara Mudaliar

We are unable to accept the view taken by the District Munsif. In England no doubt, as urged for the plaintiff, an attorney, though he has not

obtained express authority from his client for the purpose, has yet power to enter into a compromise on behalf of the latter. However, as pointed

out in the note to Section 24 of Story on Agency (9th edition, page 27), such power has given rise to much litigation in England., It is not

surprising, therefore, that even many of the American Courts administering the English Common Law have declined to follow the English rule

referred to. It is true that in the note in Story, cited above, it is said that the American decisions on the point generally agree with those of the

English Courts. But the accuracy of that observation has been questioned in Levy v. Brown where the Court says:-""In the elaborate note to

Section 24 in Story on Agency and also in Wharton on Agency, Section 592, it is said that the American rule is the same as the English. If these

learned authors mean to say that a majority of the American courts recognize an inherent right in the attorney to compromise the original demand

placed in his hand, so as to receive in full satisfaction less than the amount due, or to substitute claims upon other parties or to take property in

satisfaction of a money demand or to release any security existing when he received the claim, we cannot agree with them. That there are cases

going to this extent is true, but we think that the decided weight of authority in this country is the other way."" (30 American Reports at p. 359).

When such is the case in countries advanced as those American States are, it would scarcely be safe to apply the English rule to practitioners in the

position occupied by the majority of vakils here. Premsookh v. Prithee Ram 2 N. W. P. H. C. E., Agra 222 Mussat Hakemoonissa v. Buldes (3

Ib. 309, Mussamat Sirdar Begum v. Mussamat Izzatoot Nissa N.W.P.H.C.R. for 1870 Gour Pershad Doss v. Sookdeb Ram Deb 12

S.W.R.C.R. 279. Chunder Coomar Deo v. Mirza Sudakat Mahomed Khan. 18 Ib. 436 and Sheikh Abdul Sabhan Chowdury v. Shibkisto Daw

(3 B. L. B are clear and distinct authorities against the view adopted by the District Munsif. Moreover, so far as this Presidency is concerned, it

has been hitherto tacitly understood by all that a vakil has no implied authority to enter into a compromise on behalf of his client as is manifest from

the practice of the courts which invariably insist upon the production of special authority from the client expressing consent to the compromise

entered into on his behalf by the vakil before the compromise is accepted by the Court.

It is scarcely necessary to say that there is a considerable difference between the case where a pleader by way of compromise purports to give

up a right claimed by the client or to saddle him with a liability that is not admitted, and the case on which stress was laid in the argument, viz.,

where a pleader makes admissions as to relevant facts in the usual course of litigation, however much those admissions affect the client''s interests.

The power to bind by such admissions, which in effect is but dispensing with proof of the facts admitted, is one of the well recognized incidents of a

pleader''s general authority. To deny power so to bind the client or to do any similar act obviously necessary for the due conduct of litigation would

so embarrass and thwart a pleader as in a great measure to destroy his usefulness. But no such undesirable results would follow from holding that

in the absence of specific authority, a pleader cannot bind by compromises strictly such. It is true that the opinion of a pleader as to the advisability

of a compromise is often valuable. But it must be conceded that a client ought to have the power of deciding for himself whether a right asserted

should be relinquished and whether a liability denied should be accepted.

Having regard to all the considerations bearing on the matter, we think we ought to follow the Indian cases to which we have referred and hold

that the compromise in the present instance entered into by the defendant''s vakil without the defendant''s authority and the decree passed thereon

in spite of his opposition, are not binding on him. The decree is, therefore, set aside and the suit remanded for disposal according to law. Costs will

abide and follow the result.