Important Legal Question raised in this Second Appeal
The authority of a counsel, who does not hold a vakalath for the party, to make an endorsement on the plaint that the party-defendant has no objection in decreeing the suit as prayed for?
Whether a decree passed pursuant to such an endorsement is amenable to appeal under Section 96 CPC?
Under the Code of Civil Procedure, 1908 the relevant provision is Order 3 Rule 4. It reads as follows:
“Rule 4. Appointment of pleader:
Civil Rules of Practice, Kerala
Rule 17 in the Rules of the High Court of Kerala, 1971
Referred Cases on Vakalath & Compromise A suit
The Kerala High Court in M/s. Manuel Sons Financial Enterprises (P) Ltd. Vs. Ramakrishnan judgment dated 20 May 2015 held that “a decree passed in a case on the basis of an endorsement by an Advocate, who has no vakalath in the case, cannot be said to be a consent decree”.
Justice A. Hariprasad also held that “the challenge raised against a decree, alleging that it is not a consent decree or a compromise decree, can be entertained by way of an appeal under Section 96 CPC, if valid reasons in law are shown.
# Important Legal Question raised in this Second Appeal
# The authority of a counsel, who does not hold a vakalath for the party, to make an endorsement on the plaint that the party-defendant has no objection in decreeing the suit as prayed for?
A counsel, who has not been appointed by a party by executing a memorandum of appointment envisaged under Order 3 Rule 4 CPC (same as vakalath referred to in the Civil Rules of Practice, Kerala) may plead as permitted by the proviso to Order 3 Rule 4(5) CPC. In appropriate cases such power to plead may include even taking evidence or addressing arguments.
But, he has no authority to compromise a suit, confess judgment in the suit or make an admission so as to bind the party. No court shall accept or act on such a compromise or confession or admission without verifying whether the Advocate doing so had been authorized by the party by executing a vakalathnama.
# Whether a decree passed pursuant to such an endorsement is amenable to appeal under Section 96 CPC?
Section 96(3) CPC prohibits filing an appeal against a decree passed by a court with the consent of the parties. The decree passed by a court on the basis of an endorsement by a counsel who does not hold a vakalath for and on behalf of a party cannot be treated as a consent decree. It is so because the authority to concede or compromise is conferred on an Advocate only on executing a memorandum of appointment (vakalath) as mentioned in Order 3 Rule 4 CPC.
In the absence of such a document, an Advocate cannot concede or compromise on behalf of a party. Therefore, if a decree happened to be passed in a suit on the basis of an endorsement by an Advocate not duly appointed by the party, the decree can never be treated as a consent decree. Law is well settled by the pronouncements of Apex Court that there is no blanket bar in questioning the validity of the compromise/consent decree in an appeal under Section 96 CPC.
When a decree passed is said to be on the basis of a compromise or consent and if it is legally not such a decree, there cannot be any prohibition, either under Section 96(3) CPC or otherwise, in challenging the correctness of the decree before an appellate forum. This principle is clear from the decisions of the Apex Court on this aspect.
Therefore, an appeal is maintainable against a decree purported to be one passed under Order 23 Rule 3 CPC or Order 12 Rule 6 CPC, if the aggrieved party is able to substantiate that such a decree falls short of the legal requirements to name it a consent decree within the meaning of Section 96(3) CPC.
# Under the Code of Civil Procedure, 1908 the relevant provision is Order 3 Rule 4. It reads as follows:
# “Rule 4. Appointment of pleader:
(1) No pleader shall act for any person in any Court, unless he has been appointed for the purpose by such person by a document in writing signed by such person or by his recognized agent or by some other person duly authorised by or under a power- of-attorney to make such appointment.
(2) Every such appointment shall be a filed in Court and shall, for the purposes of sub-rule (1), be deemed to be in force until determined with the leave of the Court by a writing signed by the client or the pleader, as the case may be, and filed in Court, or until the client or the pleader dies,or until all proceedings in the suit are ended so far as regards the client.
Explanation.-For the purposes of sub.r.(2) an application for review of judgment, an application under S.144 or 152 or application under O IX, R.9 or 13 of this Code; any appeal from any Decree or Order in the Suit and any application of act for the purpose of obtaining copies of documents or return of documents produced or filed in the suit or of obtaining refund of monies paid into court in connection with the suit shall be deemed to be proceedings in the suit.
(3) Nothing in sub-rule (2) shall be construed-
(a) as extending, as between the pleader and his client, the duration for which the pleader is engaged, or
(b) as authorising service on the pleader of any notice or document issued by any Court other than the Court for which the pleader was engaged, except where such service was expressly agreed to by the client in the document referred to in sub-rule (1).
(4) The High Court may, by general order, direct that, where the person by whom a pleader is appointed is unable to write his name, his mark upon the document appointing the pleader shall be attested by such person and in such manner as may be specified by the order.
(5) No pleader who has been engaged for the purpose of pleading only shall plead on behalf of any party, unless he has filed in Court a memorandum of appearance signed by himself and stating-
(a) the names of the parties to the suit,
(b) the name of the party for whom he appears, and
(c) the name of the person by whom he is authorised to appear :
Provided that nothing in this sub-rule shall apply to any pleader engaged to plead on behalf of any party by any other pleader who has been duly appointed to act in Court on behalf of such party.”
# Civil Rules of Practice, Kerala
Words used in the statute are definitive that no pleader shall act for any person in any Court, unless he has been appointed for the purpose by such person by a document in writing signed by such person or by his recognized agent or by some other person duly authorised by or under a power-of-attorney to make such appointment.
As per Rule 27 of the Civil Rules of Practice, Kerala, which came into force on 01.10.1971, the appointment of pleaders by executing a vakalath shall be in form No.12. It insists that the name of the pleader or the pleaders, if more than one pleader is appointed, shall be inserted in the vakalath before it is executed. Further, it shall be dated at the time of its execution and of its acceptance. The Rule further states about the formalities to be complied regarding the attestation of vakalath.
# Rule 17 in the Rules of the High Court of Kerala, 1971
Rule 17 of the said Rules says that no Advocate shall be entitled to act in any proceeding, unless he files a vakalath. The proviso therein also shows that where an advocate already on record in any proceeding appoints another Advocate to appear for him at the hearing of the case, it shall not be necessary for the latter to file a vakalath. There cannot be any dispute that this provision in the High Court Rules has no application to the proceedings before the subordinate courts.
# Referred Cases on Vakalath & Compromise A suit
Selvaraj v. Federal Bank Ltd. (2011 AIR CC 826)
Berjesh Goyal v. Daily Foods (AIR 2009 Delhi 118)
Kishun v. Bihari (AIR 2005 SC 3799)
Banwari Lal v. Chando Devi ((1993) 1 SCC 581)
Byram Pestonji Gariwala v. Union Bank of India (AIR 1991 SC 2234)
D. Adinarayana Subudhi v. D.Surya Prakash Rao (AIR 1980 Orissa 110)
C.S. Nayakam v. A.N. Menon (AIR 1968 Kerala 213)
Sakrappa v. Shidramappa (AIR 1960 Mysore 217)
Laxmidas v. Savitabai (AIR 1956 Bombay 54)
Sourendranath v. Tarubala Dasi (AIR 1930 PC 158)
The authority of a counsel, who does not hold a vakalath for the party, to make an endorsement on the plaint that the party-defendant has no objection in decreeing the suit as prayed for?
Whether a decree passed pursuant to such an endorsement is amenable to appeal under Section 96 CPC?
Under the Code of Civil Procedure, 1908 the relevant provision is Order 3 Rule 4. It reads as follows:
“Rule 4. Appointment of pleader:
Civil Rules of Practice, Kerala
Rule 17 in the Rules of the High Court of Kerala, 1971
Referred Cases on Vakalath & Compromise A suit
The Kerala High Court in M/s. Manuel Sons Financial Enterprises (P) Ltd. Vs. Ramakrishnan judgment dated 20 May 2015 held that “a decree passed in a case on the basis of an endorsement by an Advocate, who has no vakalath in the case, cannot be said to be a consent decree”.
Justice A. Hariprasad also held that “the challenge raised against a decree, alleging that it is not a consent decree or a compromise decree, can be entertained by way of an appeal under Section 96 CPC, if valid reasons in law are shown.
# Important Legal Question raised in this Second Appeal
# The authority of a counsel, who does not hold a vakalath for the party, to make an endorsement on the plaint that the party-defendant has no objection in decreeing the suit as prayed for?
A counsel, who has not been appointed by a party by executing a memorandum of appointment envisaged under Order 3 Rule 4 CPC (same as vakalath referred to in the Civil Rules of Practice, Kerala) may plead as permitted by the proviso to Order 3 Rule 4(5) CPC. In appropriate cases such power to plead may include even taking evidence or addressing arguments.
But, he has no authority to compromise a suit, confess judgment in the suit or make an admission so as to bind the party. No court shall accept or act on such a compromise or confession or admission without verifying whether the Advocate doing so had been authorized by the party by executing a vakalathnama.
# Whether a decree passed pursuant to such an endorsement is amenable to appeal under Section 96 CPC?
Section 96(3) CPC prohibits filing an appeal against a decree passed by a court with the consent of the parties. The decree passed by a court on the basis of an endorsement by a counsel who does not hold a vakalath for and on behalf of a party cannot be treated as a consent decree. It is so because the authority to concede or compromise is conferred on an Advocate only on executing a memorandum of appointment (vakalath) as mentioned in Order 3 Rule 4 CPC.
In the absence of such a document, an Advocate cannot concede or compromise on behalf of a party. Therefore, if a decree happened to be passed in a suit on the basis of an endorsement by an Advocate not duly appointed by the party, the decree can never be treated as a consent decree. Law is well settled by the pronouncements of Apex Court that there is no blanket bar in questioning the validity of the compromise/consent decree in an appeal under Section 96 CPC.
When a decree passed is said to be on the basis of a compromise or consent and if it is legally not such a decree, there cannot be any prohibition, either under Section 96(3) CPC or otherwise, in challenging the correctness of the decree before an appellate forum. This principle is clear from the decisions of the Apex Court on this aspect.
Therefore, an appeal is maintainable against a decree purported to be one passed under Order 23 Rule 3 CPC or Order 12 Rule 6 CPC, if the aggrieved party is able to substantiate that such a decree falls short of the legal requirements to name it a consent decree within the meaning of Section 96(3) CPC.
# Under the Code of Civil Procedure, 1908 the relevant provision is Order 3 Rule 4. It reads as follows:
# “Rule 4. Appointment of pleader:
(1) No pleader shall act for any person in any Court, unless he has been appointed for the purpose by such person by a document in writing signed by such person or by his recognized agent or by some other person duly authorised by or under a power- of-attorney to make such appointment.
(2) Every such appointment shall be a filed in Court and shall, for the purposes of sub-rule (1), be deemed to be in force until determined with the leave of the Court by a writing signed by the client or the pleader, as the case may be, and filed in Court, or until the client or the pleader dies,or until all proceedings in the suit are ended so far as regards the client.
Explanation.-For the purposes of sub.r.(2) an application for review of judgment, an application under S.144 or 152 or application under O IX, R.9 or 13 of this Code; any appeal from any Decree or Order in the Suit and any application of act for the purpose of obtaining copies of documents or return of documents produced or filed in the suit or of obtaining refund of monies paid into court in connection with the suit shall be deemed to be proceedings in the suit.
(3) Nothing in sub-rule (2) shall be construed-
(a) as extending, as between the pleader and his client, the duration for which the pleader is engaged, or
(b) as authorising service on the pleader of any notice or document issued by any Court other than the Court for which the pleader was engaged, except where such service was expressly agreed to by the client in the document referred to in sub-rule (1).
(4) The High Court may, by general order, direct that, where the person by whom a pleader is appointed is unable to write his name, his mark upon the document appointing the pleader shall be attested by such person and in such manner as may be specified by the order.
(5) No pleader who has been engaged for the purpose of pleading only shall plead on behalf of any party, unless he has filed in Court a memorandum of appearance signed by himself and stating-
(a) the names of the parties to the suit,
(b) the name of the party for whom he appears, and
(c) the name of the person by whom he is authorised to appear :
Provided that nothing in this sub-rule shall apply to any pleader engaged to plead on behalf of any party by any other pleader who has been duly appointed to act in Court on behalf of such party.”
# Civil Rules of Practice, Kerala
Words used in the statute are definitive that no pleader shall act for any person in any Court, unless he has been appointed for the purpose by such person by a document in writing signed by such person or by his recognized agent or by some other person duly authorised by or under a power-of-attorney to make such appointment.
As per Rule 27 of the Civil Rules of Practice, Kerala, which came into force on 01.10.1971, the appointment of pleaders by executing a vakalath shall be in form No.12. It insists that the name of the pleader or the pleaders, if more than one pleader is appointed, shall be inserted in the vakalath before it is executed. Further, it shall be dated at the time of its execution and of its acceptance. The Rule further states about the formalities to be complied regarding the attestation of vakalath.
# Rule 17 in the Rules of the High Court of Kerala, 1971
Rule 17 of the said Rules says that no Advocate shall be entitled to act in any proceeding, unless he files a vakalath. The proviso therein also shows that where an advocate already on record in any proceeding appoints another Advocate to appear for him at the hearing of the case, it shall not be necessary for the latter to file a vakalath. There cannot be any dispute that this provision in the High Court Rules has no application to the proceedings before the subordinate courts.
# Referred Cases on Vakalath & Compromise A suit
Selvaraj v. Federal Bank Ltd. (2011 AIR CC 826)
Berjesh Goyal v. Daily Foods (AIR 2009 Delhi 118)
Kishun v. Bihari (AIR 2005 SC 3799)
Banwari Lal v. Chando Devi ((1993) 1 SCC 581)
Byram Pestonji Gariwala v. Union Bank of India (AIR 1991 SC 2234)
D. Adinarayana Subudhi v. D.Surya Prakash Rao (AIR 1980 Orissa 110)
C.S. Nayakam v. A.N. Menon (AIR 1968 Kerala 213)
Sakrappa v. Shidramappa (AIR 1960 Mysore 217)
Laxmidas v. Savitabai (AIR 1956 Bombay 54)
Sourendranath v. Tarubala Dasi (AIR 1930 PC 158)
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