ANANT MAHADEO GODBOLE Vs. ACHUT GANESH GODBOLE

JUDGEMENT

(1.) The narrow question in the present appeal is whether the trial Court rightly applied the amended provisions of Order XXIII, Rule 3A of the Code of Civil Procedure, which has enacted the bar to the effect that no suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful.

(2.) A few undisputed facts are that the present appellant-plaintiff filed the present suit, being Special Civil Suit No. 13 of 1977 for getting declarations to set aside and cancel the compromise decree recorded in the earlier suit, being Special Civil Suit No, 17 of 1973. Inter alia the plaintiff prayed that the decree in that suit at Ex, 105 be cancelled and the compromise in that suit at Ex. 104 be declared illegal. Similarly, he prayed that the Vakalatnama given to the advocate in that suit, who is joined as defendant No. 13 in this suit, be declared illegal.

(3.) The plaint alleged that the earlier suit was for partition and taking accounts and that the present plaintiff was defendant No. 4 therein. The present plaintiff and defendant No. 5 in the present suit had engaged advocate Shri M.A. Patil by giving him the Vakalatnama. In the earlier suit, on the compromise at Ex. 104, the said advocate, Shri Patil, because of the Vakalatnama, signed the compromise and the compromise so recites, but the plaintiff in the suit has asserted that he had not authorised the said Shri Patil to sign that compromise. The signature of Shri Patil, Advocate, therefore, was entirely unauthorised and hence the compromise is not binding. Similar allegations are reasserted in para 3 of the plaint, in that the said advocate Shri Patil had not been given the authority to sign the compromise. In para 4, it is further asserted that on the day the Vakalatnama was given, neither the plaintiff could confer nor the advocate could accept the authority to compromise the cause and, therefore, the contrary Vakalatnama was not in accordance with law. For that reason also the compromise is bad. In further allegations it is stated that on the day the compromise was recorded, the matter in court was only fixed for filing the list of witnesses and, therefore, the present plaintiff (defendant No. 4 in that suit) was not present in the Court. This would show that the advocate had not been conferred with any authority to compromise the matter. He should have taken the prior consent and should have got the matter adjourned for obtaining such a consent before he signed the compromise in the Court.