Sinha, J.:— This is an appeal by the judgment-debtors against an order of the learned Civil Judge of Allahabad, refusing to certify the adjustment of a decree.
On the basis of a mortgage granted by Bhola Nath and others, Mool Chand obtained a preliminary decree for a sum of Rs. 9,990-15-0 which was made final on the 6th of November, 1943. After the usual proceedings, the 22nd of December, 1944, was fixed for the auction sale. Mool Chand had, meanwhile, transferred his decree in favour of the respondent, Panna Lal.
On the 21st of December, 1944, that is one day before the date of the sale, the judgment-debtors presented an application, supported by an affidavit sworn by Bhola Nath, under order XXI, rule 2, of the Code of Civil Procedure, praying for the adjustment of the decree on the allegation that it had been settled that Parma Lal would accept Rs. 7,000 in full satisfaction of the decree. This application was resisted by Panna Lal. He did not say that there was no talk of an adjustment. His case was that it was agreed that the money would be paid to him by the 1st of December, arid, as that was not done, the negotiations failed.
The learned Civil Judge found that the story with which the judgment-debtors went to the court in support of their application, was not a true story on the other hand, the truth lay with Panna Lal. In the result, he rejected the application. The judgment-debtors have come to this Court in appeal against that order.
When the case came before us on the 5th instant. We thought it was pre-eminently a case for compromise and granted a short adjournment. No compromise has been arrived at.
Panna Lal had examined in support of his version one Mr. Vishwanath Pande, a lawyer practising in, the district courts. The judgment-debtors had, in support of their version, examined another lawyer, Mr. Lakshmi Das Gupta, also practising in the district courts. The truth lay between these two versions, and we thought an amicable settlement would, in the peculiar circumstances of the case, be conducive to the interest of all concerned. It, is, however, to be regretted that a settlement has not been possible.
The learned Civil Judge has devoted considerable time and care to the case, but it is obvious that he has based his judgment, largely on the statement of Mr. Vishwanath Pande. In so doing, he has discredited the version of the other lawyer, Mr. Lakshmi Das Gupta. It is true that there are circumstances, which, seemingly, tend in favour of the version of the decree-holder, but a careful analysis of the whole of the evidence, principally, the probabilities of the case, tip the scale in favour of the judgment-debtors. We do not propose to follow the learned Civil Judge in accepting, at its fact value, the testimony of Mr. Vishwanath Pande and rejecting altogether the testimony of Mr. Lakshmi Das Gupta. We do not propose to address ourselves in detail to their statements. We prefer to rest our decision upon the probabilities of the case and upon such evidence as fits in with those probabilities.
The broad fact remains that on the 21st of December, 1944, an application was presented by the judgment-debtors for recording the adjustment of the decree. In support of this, among other pieces of evidence, they, produced a draft sale-deed. It is the draft of a sale-deed, which the judgment-debtors proposed to execute in favour of a lady Srimati Chandrakali Devi, wife of one Rameshwar Prasad, for a sum of Rs. 7,000, the precise amount at which the adjustment was, according to the judgment-debtors, settled. It is an elaborate document and was prepared on the 24th of November, or soon after, as the stamp bears that date. It runs over three sheets of paper and refers to all the conditions of the transaction. It might be noted that the sons of the judgment-debtors had, with Badri Prasad, their maternal uncle, as their next friend, brought a suit, No. 22 of 1944, in the court of the Civil Judge of Allahabad, for a declaration that the mortgage made by their fathers was tainted with illegality and immorality and the decree passed on its basis was not binding on the family. This was obviously one of the important factors to be taken into consideration by both the parties. It stands to reason that Panna Lal, the purchaser of the decree, could not accept any arrangement, unless the hurdle created by this suit was successfully negotiated and the suit withdrawn. The draft contains a clear stipulation that it would be withdrawn. It is true that it was brought by the sons and not by the father, but it is distinctly provided that Badri Prasad would not only withdraw the suit but join the sale. This is a very important circumstance and, in our opinion, goes a long way in support of the theory of the judgment-debtors. It could have been only at the instance of Panna Lal, who must have been anxious to secure a title free from all cloud, that Badri Prasad undertook to join the transaction. The insistence upon Badri Prasad's joining the transaction, could have proceeded only from the purchaser of the decree and not from the judgment-debtors.
There is nothing in this draft to indicate that the transaction was to be completed and the money paid by the prospective purchaser by the 1st of December, 1944, to make it available to the decree-holder by that date. Rameshwar Prasad went into the witness-box on behalf of the judgment-debtors and no question was put to him on behalf of Panna Lal on this point. All this clearly proves that there were negotiations for a compromise. The negotiations had materialised and the theory that the money was to be paid by the 1st of December, and not thereafter, is an afterthought.
Dr. Sen, the learned counsel for the respondent, has strenuously argued that there is a divergence between the version of Mr. Vishwanath Pande and that of the judgment-debtors. The former says that he was acting on behalf of his client; Bhola Nath has, on the other hand, stated that Mr. Vishwanath Pande has acquired a personal interest in the decree and was acting on his own behalf. This in our opinion, is of no consequence. To the judgment-debtors what mattered was the factum of the adjustment. It was of no consequence to them whether the person really interested was Panna Lal or Mr. Vishwanath Pande.
Dr. Sen has also contended that the Vakalatnama did not confer any power upon Mr. Vishwanath Pande to come to terms on behalf of his client. In the first place, the statement of Mr. Vishwanath Pande itself militates against this suggestion. He says:
“Panna Lal when I pressed told me that if he was paid Rs. 7,000 by the 1st of December, 1944, he would accept it in total satisfaction of the decree.”
Whether the initiative for the compromise came from Mr. Vishwanath Pande himself, or it was taken at the instance of his client, the fact, remains that a stage was reached when Mr. Vishwa nath Pande purported to act on behalf of his client and under his instructions.
It is too late in the day, after the pronouncement of their Lordships in Sourendranath Mitra v. Taruhala Dasi(1), to contend that a specific authority to compromise is necessary. Say Their Lordships at page 1317:
“They are of opinion that Mr. Sircar, as an Advocate of the High Court, had, when briefed on behalf of the defendant in the court of the Subordinate Judge of Hoogly, the implied authority of his client to settle the suit. Their Lordships have already said that he must be treated as though briefed on the trial of the suit. Their Lordships regard the power to compromise a suit as inherent in the position of an Advocate in India.”
We are of opinion that Mr. Vishwanath Pande had, by virtue of his position as an Advocate and also because he had received definite instructions from his client, ample power to settle the dispute. We have also come to the conclusion that the story of the judgment-debtors that the matter had been compromised at a sum of Rs. 7,000 is borne out by the probabilities of the case. We might repeat that, in arriving at our conclusion, we have been influenced solely by the probabilities. We mean no aspersion upon Mr. Vishwanath Pande. Nor do we share the criticism by the learned Civil Judge of the conduct of Babu Lakshmi Das Gupta.
We, therefore, allow the appeal, set aside the order of the court below and hold that there was an adjustment of the dispute within the meaning of order XXI, rule 2, of the Code of Civil Procedure.
We are informed by the learned counsel for the parties that the auction sale was held on the 22nd of December, 1944, and Panna Lal has withdrawn a sum of Rs. 8,059-12-0 out of the sum deposited by the appellants. In view of our decision that there was an adjustment of the decree at Rs. 7,000, Panna Lal is entitled to retain only a sum of Rs. 7,000 and must refund the balance. He shall do it within a fortnight of this date.
We have, on a consideration of all the facts, come to the conclusion that this is a fit case in which the parties should bear their own costs throughout.