V.N. Sinha, J.
1. This civil revision application is directed against the order dated 7.6.2002 passed by the Subordinate Judge V, Bhagalpur in Misc. case No. 13/96/5/02 by which the Court below has dismissed the said misc. case and has thereby refused to recall the order dated 31.7.1996 passed in Title suit No. 186/84 whereunder compromise petition dated 30.7.1996 was accepted and the said title suit was decreed in terms of the aforesaid compromise petition.
2. Before proceeding to notice the submissions of the parties, it is appropriate to mention a few relevant fact. The plaintiff- opposite party Nos. 1 to 5 filed Title (Partition) suit No. 186/84 in the Court of Subordinate Judge, Bhagalpur in which they referred to earlier T.S. No. 35/43 which was disposed of in terms of the compromise decree dated 23.7.1945 on the basis of which survey record was published in the name of Sarojendu Biswas. Having made the said reference plaintiff-opposite party Nos. 1 to 5 claimed half share and further pleaded that defendants Ist party i.e. defendant Nos. 1 to 14/opposite party Nos. 6 to 26 herein were entitled to 1/3rd share and defendant No. 15 opposite party No. 27 herein was entitled to 1/6th share respectively in the suit properties. Besides transferees from co- sharers were also added as defendant Nos. 16 to 19 in the suit. While Title Suit No. 186/84 was pending defendant Nos. 2 Smt. Puspa Biswas and 2(a) Apurba Kumar Biswas wife and son of late Sarojendu Biswas, in respect of suit properties, executed general power of attorney on 31.7.1992 (exhibit 6/annexure 7) in favour of two persons namely 1. Umesh Chandra son of Shjvchandra resident of Nawab Road P.S. Kotwali District Bhagalpur and 2. Dr. Sanjeev Kumar Mishra son of Mahendra Nr. Mishra resident of village Gosaidaspur P.O. Champanagar P.S. Nathnagar District Bhagalpur. The said power of attorney was later registered on 3.8.1992. In terms of power of attorney both holders were authorised to negotiate the sale of the suit properties as also to execute the sale deed and to admit the execution after receipt of consideration before the Registrar/sub-Registrar. The holders were also authorised to appoint and engage Solicitor/ counsel and to prosecute and defend civil and criminal actions filed against the executant. The holders were further authorised to sign and verify the plaint, written statement and other pleadings which were required to be filed in connection with civil and criminal action instituted against executant. On 4.8.1992 the Attorney S.K. Mishra executed deed of Zerbeyana (agreement for sale) with respect to the entire suit property on the basis of the power of attorney in favour of his wife and brother namely Nutan Mishra and Pankaj Kumar Mishra petitioner Nos. 3 and 4 herein. The aforesaid deed of zerbeyana (agreement for sale) has been marked as exhibit 7. Having executed the aforesaid zerbeyana deed/agreement for sale the said Dr. S.K. Mishra engaged M/s. Murli Manohar Shukla and Naresh Mohan Thakur (both advocates) to defend and appear on behalf of defendants 2 and 2(a) in the aforesaid title suit. The aforesaid advocates filed their vakalatnama on behalf of the defendant Nos. 2 and 2(a) on 28.4.1993 and thereafter prepared written statement on the basis of the materials made available by the attorney Dr. S.K. Mishra which was filed on 18.5.1993 after verification/affidavit of Dr. S.K. Mishra. In the written statement filed on behalf of defendant Nos. 2 and 2(a) it was averred that the suit as framed was not maintainable on account of non-joinder of necessary party as daughters of Jyotendra Nath Biswas and Subodh Chaudhary were not made party. It was also averred in the written statement that the partition suit as framed should not proceed without payment of ad volorem court-fee as the subject matter of the suit is already concluded by the compromise decree dated 23.7.1945 passed in Title suit No. 35/43 on the basis of which revenue records have already been published and contesting defendants are in possession of the suit properties and they have executed power of attorney dated 31.7.1992/3.8.1992 for better management of the suit properties. Defendant No. 15 filed written statement denying his interest in the suit property but prayed for dismissal of the suit as the suit as framed was neither maintainable nor the plaintiffs had any cause of action. During the pendency of the suit, contesting defendant Nos. 2 and 2(a) filed several petitions praying inter alia to decide the question of maintainability of the suit including payment of ad valorem court-fee as preliminary issues and it appears from the ordersheet dated 2.7.1996, 12.7.1996 and 24.7.1996 as contained in Annexure-11 that hearing of those petitions were being deferred and finally 30.7.1996 was the date fixed for hearing of those petitions. It, however, further appears from the ordersheet dated 30.7.1996 that on that date instead of proceeding with hearing of the maintainability matter as preliminary issue, parties filed compromise petition (Annexure-3) which was forwarded to Sheristedar for scrutiny and report and 31.7.1996 was fixed for receipt of the report of Sheristedar. It also appears from the ordersheet dated 30.7.1996 that another (new) vakalatnama on behalf of defendants 2 and 2(a) and papers on behalf of defendants 10, 1, 3 and 4 was filed whereafter the suit was called for hearing in response whereto parties appeared and they were heard. The report of Sheristedar was also received on 30,7.1996 and, thereafter, the matter was adjourned to 31.7.1996, for orders on the compromise petition. On 31.7.1996 the Court below perused the compromise petition and the report of Sheristedar dated 30.7.1996 approved the terms of the compromise and directed that the suit be decreed in terms of the compromise which should form part of the decree. On 29.8.1996 petitioner Nos. 1 and 2/defendant Nos. 2 and 2(a) filed petition through their attorney Dr. S.K. Mishra under Section 151 of Code of Civil Procedure which was numbered as miscellaneous case No. 13/16 of 1996 (Annexure-6) praying inter alia to recall the order dated 31.7.1996 passed in the title suit on the ground that fraud has been practised as compromise petition was neither signed by defendant Nos. 2 and 2(a) nor by their constituted attorney nor by their lawyer who filed their written statement and conducted the case until new power was filed on their behalf on 30.7.1996 as is evident from the later portion of the order dated 30.7.1996. During hearing of the misc. case parties adduced both oral and documentary evidence as would appear from the list of documents admitted in evidence and contained in Annexure-15. The relevant deposition of the witnesses have also been annexed with the civil revision application and are contained in Annexures-6 and 7. The Court below having considered the oral and documentary evidence passed the impugned order dated 7.6.2002 holding that misc. petition filed at the instance of one of the constituted attorney namely Dr. S.K. Mishra is not maintainable as according to the Court below under the power of attorney Exhibit-6/Annexure-7 both the constituted attorneys were entrusted to act jointly and independent exercise of authority by one of the constituted attorney namely Dr. S.K. Mishra was not permissible and in that view of the matter misc. case filed on behalf of defendant Nos. 2 and 2(a) only by one of the constituted attorney Dr. S.K. Mishra is not maintainable and dismissed accordingly. The Court below while recording the aforesaid order also observed that it had compared the signatures of defendants 2 and 2(a) on the compromise petition with their admitted signatures on the power of attorney and it was satisfied that defendants 2 and 2(a) had signed the compromise petition and as such the same was rightly approved by the trial Court under Order dated 31.7.1996 and there is no ground much less good ground to recall the order dated 31.7.1996.
3. Learned counsel for the petitioners assailed the aforesaid order dated 7.6.2002 on the following grounds:
(i) Perusal of the order dated 31.7.1996 indicates that while accepting the terms of the compromise, the Court below failed to examine the terms of the compromise with its judicial mind and accepted the same in a casual manner which would appear from the submission noted below;
(ii) With reference to para-10 of the compromise petition Annexure-1 to the second supplementary affidavit wherein it has been categorically stated that the parties to the suit as well as their respective lawyers have signed the compromise petition after fully understanding the contents and implication of the said petition, it is submitted that as the compromise petition was admittedly not signed by defendants 15, 16 to 19 and the constituted attorney of defendant 2 and 2(a) who had already filed written statement on 18.5.1993 and was contesting the suit on their behalf and as such the said compromise petition should not have been accepted and made rule of the Court under order dated 30.7.1996;
(iii) Under the power of attorney both the constituted attorney were entitled to act independently and in recognition of the said position both the constituted attorney always acted independently inasmuch as Zerbeyana deed/agreement for sale was executed by one of the constituted attorney Dr. S.K. Mishra on 4.8.1992,
(iv) Dr. S.K. Mishra alone engaged the two lawyers namely M/s. Muri Manohar Shukla and Naresh Mohan Thakur to defend and appear on behalf of defendant 2 and 2(a) in the aforesaid suit and they filed their vakalatnama on the instruction of Dr. S.K. Mishra on 28.4.1993. Written statement on behalf of defendant 2 and 2(a) was verified by Dr. S.K. Mishra and thereafter filed on 18.5.1993 through the aforesaid lawyer;
(v) The compromise petition which was filed on 30.7.1996 was not signed by the aforesaid two lawyers of defendant 2 and 2(a) namely Murli Manohar Shukla and Naresh Mohan Thakur and was signed by Shri Dilip Kumar, Advocate on 2.7.1996 when he was not authorised on their behalf to prepare and sign the compromise petition as vakalatnama dated 30.7.1996 Annexure-1 to the supplementary affidavit was accepted and filed later on 30.7.1996.
4. To buttress the aforesaid submission that the compromise recorded under order dated 30/31.7.1996 was neither lawful nor has been signed by the parties to the suit as required under Rule 3 of Order 23 of the Code of Civil Procedure, learned counsel for the petitioners relied upon the judgment of Hon'ble Supreme Court in the case of Banwari Lal v. Smt. Chando Devi, AIR 1993 Supreme Court 1139, the case of Mathura Singh and Ors. v. Deodhari Singh and Ors., AIR 1972 Patna 17 and the case of Smt. Kiran Arora and Ors. v. Ram Prakash Arora and Ors., AIR 1980 Delhi 99. By placing reliance over the aforesaid judgments, they further submitted that while recording compromise it was the bounden duty of the Court to have satisfied itself about the terms of the compromise and other details of the compromise petition including the fact that the parties and their lawyers have signed the compromise petition as was proclaimed in para 10 of the compromise petition. In this connection learned counsel repeatedly invited my attention to the contents of the order dated 30/31.7.1996 to submit that the Court below while accepting the compromise has not at all recorded its satisfaction about the acceptance of the compromise.
5. Learned counsel for the opposite party on the other hand refuted the aforesaid submission. He submitted that power of attorney in question is violative of Sections 2, 3 and 4 of Power of Attorney Act, 1882. In this connection he relied upon the case of Satya Charan Goswami v. Shyam Ishwar Gangu Mal Bhujwani, 1972 BLJR 600 and the case of Mahendra Pratap Singh v. Smt. Padam Kumari, 1993 Allahabad 143. He further submitted that when constituted attorney Dr. S.K. Mishra became dishonest and executed Zerbeyana in regard to the subject matter of power of attorney/suit properties in favour of his wife and brother then the executant of the power of attorney had to intervene in the matter and he on his own accord has entered into compromise with the plaintiffs and as such constituted attorney his wife and brother should not have any objection in regard to the compromise which has already been made rule of the Court. In support of his contention regarding dishonest motive of the constituted attorney be relied upon several paragraphs of Halsbury's Laws of England 4th Edition volume I that is paragraphs 717, 730, 771, 776, 787 and 826 with reference to the aforesaid paragraphs, he submitted that the holders of the power of attorney is an agent who should discharge his duty towards the principal with the same amount of sincerity and honesty by which he is to act for his own self as relationship between principal and agent is of fiduciary character. He further submitted with reference to Clause 2 and other clauses of the power of attorney annexure-7 that the two constituted attorney were only authorised to act jointly and not independently and in that view of the matter, the Court below rightly dismissed the misc. case, filed only at the instance of one of the constituted attorney Dr. S.K. Mishra as not maintainable. In this connection, he relied on Clause 2 of the power of Attorney which is quoted below:
'2. To sign and execute all other deeds, instruments and assurances which they shall consider necessary and to enter into and/or agree to such covenants and conditions as may be required for fully and effectually conveying the said property as we could do ourselves, if personally present for each half of total property.'
Having referred to the aforesaid clauses he laid stress on the word 'they' and submitted that by using the word 'they' the executant has made his intention clear that both the holders were required to act jointly and not independently as according to him the terms of the power of attorney should be strictly construed by adopting the principle of strict construction and construing Clause 2 of power of attorney he submitted that holder Dr. S.K. Mishra under the power of attorney (Annexure-7) should not have acted independently. He further submitted that it is always open for the executant of the power of attorney to revoke the authority of the holder and in this case the authority of the holder stood revoked when the executant entered into compromise and signed the compromise petition.
In regard to the submission that defendant Nos. 15, 16 to 19 have not signed the compromise petition and on that ground alone the compromise is vitiated. It was submitted by the counsel for the opposite party that in view of the averments made in the written statement that defendant No. 15 had no interest in the suit property he was not made to sign the compromise petition and failure to include his signature on the compromise petition should not vitiate the compromise. In regard to the failure to obtain the signatures of defendant Nos. 16 to 19 on the compromise it was submitted that they being purchaser from the co-sharer and as such even though they have not signed the compromise petition their interest shall be protected alongwith interest on their vendors who have signed the compromise petition and in that view of the matter failure to obtain signature signatures of defendant Nos. 15, 16 to 19 should not vitiate the compromise.
6. Having considered the aforesaid submission of the parties, I have examined the contents of the power of attorney, compromise petition and the contents of the order dated 30/31.7.1996 alongwith the impugned order dated 7.6.2002. In my opinion, the power of attorney in question does not violate any of the provision of the Power of Attorney Act, 1882 as thereunder a valid agency was created in favour of both the holders namely Umesh Chandra and Dr. Sanjiv Kumar Mishra. After perusal of the different clauses of the aforesaid power of attorney including Clause 2, I am of the opinion that the power of attorney holders were authorised to act independently and they have all along been acting independently inasmuch as Dr. Mishra executed Zerbeyana deed on 4.8.1992. He engaged the lawyer to contest the present suit on behalf of defendants 2 and 2(a) and filed vakalatnama on their behalf on 28.4.1993. He thereafter filed written statement on behalf of defendants 2 and 2(a) on 18.5.1993 and contested the suit on their behalf until filing of the said compromise petition dated 30.7.1996. In view of the aforesaid facts it was incumbent upon the parties including defendants 2 and 2(a) to have consulted the attorney Dr. Mishra before signing/filing of the compromise petition dated 30.7.1996. In the event Dr. Mishra was not willing to sign on the compromise petition the unwillingness on his part was required to be mentioned in the compromise petition itself. Perusal of the compromise petition however depicts altogether a different story. It says that defendant 1st party i.e. defendants 2 and 2(a) have entered appearance and have been contesting the suit. It further records in para-10 that the parties and their lawyers have signed the compromise petition which statement is not correct in view of the fact that admittedly compromise petition has not been signed by defendants 15, 16 to 19 and the constituted attorney of defendants 2 and 2(a) who contested the suit on their behalf until filing of the compromise petition dated 30.7.1996. In view of the aforesaid facts, contents of para-10 of compromise petition is absolutely incorrect. This aspect of the matter as also the legality and validity of the terms compromise was essentially required to be considered by the trial Court while accepting the compromise under order dated 31.7.1996 as is provided under Order 23, Rule 3 C.P.C. The trial Court in my considered opinion has failed to perform the aforesaid mandatory duty which is evident from perusal of the order dated 31.7.1996. Aforesaid aspect regarding the duties of the trial Court under Order 23, Rule 3, C.P.C. has been highlighted by the Hon'ble Supreme Court in the case of Banwari Lal (supra). Respectfully following the law laid down by the Apex Court in the case of Banwari Lal (supra), I hold that the trial Court while accepting the compromise under order dated 31.7.1996 failed in its duty to examine the contents of the compromise petition including the terms of the compromise and thereby the acceptance of the compromise under order dated 31.7.1996 is vitiated in law. In view of my finding recorded in regard to the authority of the power, of attorney holder to act independently, I further hold that misc. case filed by Dr. Mishra on behalf of defendants 2 and 2(a) to set aside the order dated 31.7.1996 was maintainable and for the reasons stated above should have been allowed which is, accordingly, allowed and the impugned order dated 7.6.2002 dismissing the misc. case is set aside with further direction that the order dated 31.7.1996 accepting the compromise should also be set aside and the suit should proceed in accordance with law. In the result the application is allowed. No cost.