Shivanandan Prasad Singh vs Abdul Fateh Muhammad Reza

Wort, J.—This is an application by way of review to set aside the judgment of this Court which was recorded on compromise.

Briefly stated the facts were that the present petitioner who was the plaintiff brought an action claiming a declaration that a certain mortgage granted by the second defendant in the action over the property which he had purchased from him was invalid. It is unnecessary to go into the allegations of the plaintiff in that action nor to state on what ground that mortgage was alleged to have been invalid; but it is sufficient to state the fact that the property had been sold to the plaintiff by defendant 2 and a mortgage had been executed in favour of defendant 1 over the same property. In the trial the plaintiff succeeded. Ultimately there was as appeal by defendant 1 to this Court against the decision of the trial Court.

The appeal was allowed as against defendant 2, but it is as regards defendant l''s mortgage that this compromise which is now attacked was entered into. The terms substantially were that in consideration of the payment of upwards of Rs. 10,000 the plaintiff would convey the property to defendant 1. This compromise was recorded. This was on 8th March of this year, and it is now stated that that compromise was entered into without authority and that the plaintiff only obtained information of it on 10th March.

The affidavits which have been filed by the respective parties contain allegations both as regards the authority of Mr. , Sushil Madhab Mullick and Mr. Shivanandan Ray, who appeared on behalf of the plaintiff-respondent, as also as regards the authority of the karpardaz who was looking after the case and was instructing the advocates. Now, it must be stated at once that there is no suggestion against either Mr. Sushil Madhab Mullick or Mr. Shivanandan Ray. That they, acted in what they believed to be the best interests of the plaintiff, there can be no manner of doubt and their action was bona fide from beginning to end.

I make this statement in case it could be suggested that either of the learned advocates had not carried out their duties properly in connexion with the matter. To repeat myself there is no suggestion, nor could there possibly be any suggestion against either of the learned gentlemen. The question of whether the karpardaz had actual authority or not is a very difficult matter, and a matter which I have grave doubts could be determined in a summary proceeding in this Court. It is not necessary to consider it, because by agreement of both Mr. Jayaswal, who appears now on behalf of the plaintiff-petitioner, and Mr. Husnain, who appears on behalf of defendant 1, it is agreed that the matter of the compromise must be determined on the basis of the question of whether the advocates in the circumstances can be deemed to have had authority to make a compromise such as the present one.

It is contended by Mr. Jayaswal on behalf of the plaintiff-petitioner that, although it must be admitted that the learned advocates had authority to compromise the action, they in fact went beyond the scope of their authority implied by law, in dealing with matters which were beyond the scope of the suit. It is said that the terms under which the plaintiff was to execute a conveyance to defendant 1 could not possibly be considered to be within the scope of the suit.

Now any question that counsel in this country has authority by law to dispose of litigation by compromise is certainly set at rest by a decision of the Privy Council in the case of AIR 1930 158 (Privy Council) . We have here, none of the difficulties which have been indicated in that case by Lord Atkin by reason of the agreement made between the learned advocates who now appear before us that the case must be decided on the basis of whether the conveyance was a matter which can be considered to be within the scope of the suit.

It is hardly necessary therefore to mention the case of Swinfen v. Swinfen (1856) 18 CB 485 which eventually developed into an action at law entitled: Swinfen v. Lord Chelmsford (1860) 29 LJ Ex 382. I merely mention the case because when the matter was placed before us it was strenuously contended that the learned advocates in this case could have no possible authority.

Having regard to the decision of the Privy Council to which I have just referred and having regard to the agreement between the learned advocates before us, the questions which were debated in the case of Swinfen v. Swinfen (1856) 18 CB 485 and Swinfen v. Lord Chelmsford (1860) 29 LJ Ex 382 do not strictly arise, suffice it to say that the case when it had developed into an action at law by Lord Chelmsford, the learned Judges in deciding the case laid down the proposition which was the basis of the argument before us. Mr. Husnain lends support to his point by contending that whether a matter was within the scope of the suit or whether a matter is collateral to the suit or not is the same question which arises under Order 23, Rule 3. He does not contend that we are dealing with the same matter, but as I understand his argument it is this: that when the expression relating to the suit is used in Order 23, Rule 3 the same matters arise for determination as when we are discussing what are matters which are collateral or not collateral as the case might be in the matter of the authority of counsel to settle litigation.

There are a number of English cases upon which Mr. Husnain relies. One is the case of Thomas v. Hewes (1834) 2 Cr & M 519 and the other is the case of Prestwich v. Poley (1865) 18 CB 806. The latter was a case in which there was an action for the price of a piano. The attorney engaged in the case compromised the action by agreeing to the return of the piano. Erle, C.J., in the course of his judgment said:

It is clear that there was no express prohibition to the attorney to compromise; and the question for us to determine is, whether the general retainer as attorney gave authority to compromise the action in this way. It is conceded that the attorney on the record has a general control and authority over the procedure in the action, and that it is competent for him to settle the action by taking a less sum than that demanded by the plaintiff. But it is said he has no authority to take goods for money. I do not see why he should not. If the case had proceeded to its natural results--to judgment and writ of fieri facias, for aught I know the sheriff might have taken this very piano in execution.

Byles, J., Keating, J., and Montague Smith, J., decided in the same way. Perhaps the authority is not as strong in favour of the defendant as it might be considered having regard to the form of the action which it was necessary to bring in Common law Courts at the time of day when that case was decided.

But the case of Thomas v. Hewes (1834) 2 Cr & M 519 seems to me in my judgment, stronger in favour of the defendant. That was an action in trespass. There the terms of settlement were that the property should be conveyed to the trespasser. The point that Mr. Jayaswal raises as regards that decision is that the Board in deciding the matter discharged the rule on the ground that the question of the authority could not be settled in a summary fashion; but it is to be noticed that both Bayley B. and Bolland B., did not decide the case on that ground but decided that the matter was a matter which could properly be the subject-matter of a compromise.

Mr. Jayaswal on the limited point which we have to determine relies strongly on the case of Johurmull Bhutra Vs. Kedarnath Bhutra, which, according to Mr. Jayaswal''s argument, is an authority for the proposition that even in a partition action the appointment of a receiver by agreement between the parties in not a matter within the scope of the action. However on an analysis of that case, it will be seen that one or other of the parties in the pleadings had alleged that one of the properties to be partitioned was debuttar property and subsequently, when the terms of the compromise came to be made, both parties had agreed to treat the property as debuttar. It will be seen that the decision in the case was based on the ground that the debuttar property was not in a sense the subject-matter of the partition.

Therefore the appointment of a receiver of that property must be held to have been outside the scone of the suit. It is on that very limited ground, in my judgment, the case was decided and it does not appear to me, to be an authority for the proposition, that even in a partition action the appointment of a receiver is not within the scope of the action. That, in my judgment, would be a surprising proposition.

Mr. Husnain, as I have stated has argued that "matters relating to the suit" is an expression which is synonymous with the expression "either relating to the suit or not collateral to the suit" as regards the matter we have to determine, and in this connexion there is an authority in the case of Saudaminl Dasi v. Behari Lal AIR 1921 Cal 227. This decision, in my judgment, although perhaps not directly a decision, on the point, has some bearing on the matter in dispute. That was an action which the plaintiff had brought for a declaration that a certain property, was not liable to execution and that an injunction was prayed for restraining the Court from executing upon that property. As a result of the compromise which was subsequently entered into, it was agreed that the respondent-plaintiff would execute a mortgage bond for a certain sum, in respect of the property in suit. That case is not dissimilar to the one which we have before us and it was held there that the compromise related to the subject-matter of the suit within the meaning of Order 23, Rule 3.

There is another test which has been applied in this case to the question and that is this. On the one hand Mr. Jayaswal says that matter cannot relate to the suit unless, the action was capable of being determined in the form which the compromise took, that is to say, that the terms of the compromise was one of the ways in which the suit could have terminated.

In this case he argues that under no circumstances could the suit have resulted in his being obliged to convey the property to defendant 1.

On the other hand it is said by Mr. Husnain on behalf of the defendant that if his argument is to hold good then in no circumstances can any action be settled unless upon terms either that the action succeeds or fails: in other words, judgment be given either for the plaintiff or judgment be given for the defendant. I gravely doubt whether the proposition of law which Mr. Jayaswal puts forward can be held to be good.

In my opinion, therefore when the parties here agreed that the property should be conveyed, although that was not a possible result of the action, I cannot resist the conclusion that that was a matter which did relate to and was not a matter, collateral to the suit.

For that reason I would hold, that we cannot entertain this application in review. Therefore the result is that it must be dismissed with costs: hearing fee five gold mohurs.

Scroope, J.

I agree.