Case ID: 6848

Judgment:
Appeal No. 3698 of 1991. From the Judgment and Order dated 1.11.1990 of the Bombay High Court in Chamber Summons No. 838 of 1990 in Execution Application No. 242 of 1989 in Suit No. 309 of 1972. Arun Jaitley	 R.F. Nariman	 R. Karanjawala	 Mrs. M. Karanjawala	 Ms. Nandini Gore and Ms. Aditi Choudhary for the appellant. 191 V.A. Bobde	 U.A. Rao and B.R. Agarwala for the respondents. The Judgment of the Court was delivered by THOMMEN	 J. Leave granted. The appellant who is the defendant in Suit No. 309 of 1972 challenges the judgment of the Bombay High Court in Chamber Summons No. 838 of 1990 in Execution Application No. 242 of 1989 whereby the High Court held that the decree made against the defendant in terms of a compromise in writing and signed by counsel representing the parties	 but not signed by the parties in person	 was valid and binding on the parties	 and in the absence of any challenge against the order made under Order XXI rule 23	 Civil Procedure Code allowing execution of the decree	 the defendant was no longer entitled to resist execution by recourse to Chamber Summons. The High Court found that the decree was valid and in accordance with the provisions of Order XXIII rule 3	 as amended by the C.P.C. (Amendment) Act	 1976. The only question which arises for consideration is as regards the construction of Order XXIII rule 3	 C.P.C. We shall read this provision	 as amended by the C.P.C. (Amend ment Act	 19%	 bracketing the newly added words: 23.	 R. 3 Compromise of suit where it is proved to the satisfaction of the court that a suit has been ad justed wholly or in part by any lawful agreement or compro mise	 (in writing and signed by the parties) or where the defendant satisfied the plaintiff in respect of the whole or any part of the subject matter of the suit	 the Court shall order such agreement	 compromise or satisfaction to be recorded	 and shall pass a decree in accordance therewith [so far as it relates to the parties to the suit	 whether or not the subject matter of the agreement	 compromise or satisfaction is the same as the subject matter of the suit: [Provided that where it is alleged by one party and denied by the other that an adjustment or satisfaction had been arrived at	 the court shall decide the question; but no adjournment shall be granted for the purpose of deciding the question	 unless the court	 for reasons to be recorded	 thinks fit to grant such adjournment.] [Explanation. An agreement or compromise which is void or voidable under the 	 shall not be 192 deemed to be lawful within the meaning of this rule. Mr. Arun Jaitley	 appearing for the appellant	 says that the High Court was wrong in holding that	 notwithstanding the amendment of 1976 inserting the words 'in writing and signed by the parties '	 it was still sufficient if the terms of compromise were reduced to writing and signed by counsel representing the parties	 and not necessarily by the parties in person. Any such construction would do violence to the provision as amended in 1976. He says that the object of the amendment was to provide that no agreement or compromise adjusting wholly or in part a pending suit was valid unless such compromise was evidenced in writing and signed by the parties in person. The expression 'parties '	 he contends	 means only parties and none else. To read 'counsel ' into that expression	 as done by the High Court	 is to presume that the legislature failed to say what it intended to say and to attempt to supply the omission by correcting the deficiency. This cannot be done. The legislature	 on the other hand	 made its intention explicit by providing that an agreement or compromise would form the basis of a decree only if the consensus was reduced to writing and signed by the parties. Neither an agent nor a pleader could act as a substitute for a party to sign the agreement or compromise. A decree based on a compromise not signed by the parties in person is a nullity and is incapable of execution. Mr. Jaitley submits that if the legislature had intended to authorise counsel independently to sign the memorandum containing the terms of settlement	 and allow a decree to be passed in terms thereof	 the legislature would have said so by further adding the words 'or their counsel '. In the absence of any such expression	 it cannot be presumed that the legislature intended more than what it said and that 'party ' included counsel. This argument	 Mr. Jaitley says	 is fortified by the fact that for the first time the legis lature has allowed a decree to be passed on the basis of compromise relating to matters concerning the parties	 but extending beyond the subject matter of the suit. Such a wide power to compromise was most unlikely to be left in the hands of counsel	 and it is	 therefore	 necessary to read the provision narrowly so as to read it as it now stands by adopting a strictly literal construction. Mr. V.A. Bobde appearing for the respondents	 on the other hand	 submits that it was always understood that the expression 'party ' included his pleader in matters relating to appearance in court	 and his counsel in the cause	 there fore	 has express or implied authority	 unless specifically withdrawn or limited by the party	 to represent him in court and do 193 whatever is necessary in connection with the conduct of his suit including adjustment of the suit by agreement or com promise. In the absence of any such limitation or restric tion of his authority	 counsel appearing for a party is fully competent to put his signature to the terms of any compromise upon which a decree can be passed in proper compliance with the provisions of Order XXIII rule 3 as it now stands. Any such decree	 he says	 is perfectly valid. Mr. Bobde submits that in the absence of express words to the contrary	 'party '	 in the context of proceedings in court	 must necessarily include his recognised agent or pleader. This construction is warranted by the provisions of Order III	 C.P.C. That this has been the consistent view adopted by courts in the construction of the expression 'party ' in the context of proceedings in court is clear from the decisions of courts	 and it is most unlikely that the legislature would have	 by the amendment of 1976	 limited the scope of 'party ' so as to exclude the traditional role of the recognised agent or counsel. The legislative drafts men are presumed to know the law of the land as it stood then	 and	 if they had intended to deviate therefrom	 they would have explicitly stated so rather than leave it to future judicial construction. The Statement of Objects and Reasons for the amendment	 he says	 does not support the view canvassed by the appellant. Sub clause (iii) of clause 77 of the Statement of Ob jects and Reasons concerning the C.P.C. (Amendment) Act	 1976 states: is provided that an agreement or compromise under rule 3 should be in writing and signed by the parties. This is with a view to avoiding the setting up of oral agreements or compromises to delay the progress of the suit. . . . . . . . In view of the words 'so far as it re lates to the suit ' in rule 3	 a question arises whether a decree which refers to the terms of a compromise in respect of matters beyond the scope of the suit is executable or whether the	 terms of the decree relating to the matters outside the suit can be enforced only by a separate suit. The amendment seeks to clarify the position. " The Statement of Objects and Reasons indicates that the amendment is intended to clarify that a compromise has to be in writing signed by the parties to avoid delay which might arise from the uncertainties of oral agreements. The amendment has also clarified that the terms of compromise are permitted to include all matters relating to the parties to the 194 suit even if such matters fall outside the subject matter of the suit. The legislature has thus sought to attain certainty and clari ty and widen the scope of compromise. The fundamental question is	 in the absence of any contrary indication in the Statement of Ob jects and Reasons	 can it be stated that the legislature has intended to exclude a pleader or a recognised agent from the expression 'party ' when it has always been understood	 as explicitly stated in Order 1II rule 1	 that appearance of a party in court may be in person or by his recognised agent or pleader. In the absence of any provision to the con trary	 can it be stated that the legislature	 when using the expression 'parties ' in rule 3 of Order XXIII	 limited it to parties in person and excluded their duly recognised agents or counsel ? The role of counsel in Court in England is described in Halsbury 's Laws of England	 4th Ed. Vol.3	 paras 1181 & 1183	 as follows: "1181. Counsel 's authority. At the trial of an action	 counsel 's authority extends	 when it is not expressly limited	 to the action and all matters incidental to it and to the con duct of the trial	 such as withdrawing the record	 challenging a juror	 calling or not calling witnesses	 cross examining or not cross examining witnesses	 consenting to a reference to arbitration	 a compromise	 or a verdict	 undertaking to appear	 or	 on the hearing of a motion for a new trial	 consent ing to a reduction of damages. The client 's consent is not needed for a matter which is within the ordinary authority of counsel: thus if	 in court	 in the absence of the client	 a compromise or settlement is entered into by counsel whose authority has not been expressly limited	 the client is bound. If an action is settled in court in the presence of the client	 his consent will be inferred	 and he will not be heard to say that he did not understand what was going on . . " The implied authority of counsel in England is	 howev er	 confined to matters failing within the subject matter of the suit. In the absence of express authority	 counsel cannot enter into compromise on collateral matters. "The authority of counsel to compromise is limited to the issues in the action: a compro mise by counsel affecting collateral matters will not bind the client	 unless he expressly assents; and it may be that a barrister has no authority to reach a binding settlement or compromise out of court. "(Halsbury ibid) 195 A compromise is	 however	 not binding and is liable to be set aside in circumstances which would invalidate agree ments between the parties. "A compromise by counsel will not bind the client	 if counsel is not apprised of facts the knowledge of which is essential in refer ence to the question on which he has to exer cise his discretion	 for example that the terms accepted had already been rejected by the client. Where counsel enters into a com promise in intended pursuance of terms agreed upon between the clients	 and	 owing to a misunderstanding	 the compromise fails to carry out the intentions of one side	 the compromise does not bind the client	 and the court will allow the consent to be withdrawn. Where	 acting upon instructions to compromise	 counsel consents under a misunderstanding to certain terms which do not carry into effect the intentions of counsel and the terms are thought by one party to the more extensive than the other party intends them to be	 there is no agreement on the subject matter of the compromise	 and the court will set it aside. But a person who has consented to a compromise will not be allowed to withdraw his consent because he subsequently discovers that he has a good ground of defence? (Halsbury	 ibid	 para 1183). Counsel 's consent in certain circumstances such as duress or mistake may not bind the client. "If counsel 's consent is given under duress	 the client will not be bound	 as when counsel	 acting for a client alleged to be of unsound mind but believing him to be of sound mind	 consented to certain terms for the withdrawal of Court of Protection proceedings against the client because of his fear of the inconven ience and iII health likely to arise to the client from confinement. A compromise or order made by consent by counsel for a minor or other person under disability is not binding on the client	 unless it is sanctioned by the court as being for the benefit of the client. The court cannot	 however	 enforce a compromise on a minor against the opinion of his counsel." (Halsbury	 ibid) One of the early English authorities on this point is Pa tience Swinfen 196 vs Lord Chelmsford ; at 922; S.C. 29 L. J. (E.x) 382. Delivering the judgment of the Court	 Pollock	 C.B.	 stated: ". We are of opinion	 that although a coun sel has complete authority over the suit	 the mode of conducting it	 and all that is inci dent to it such as withdrawing the record	 withdrawing a juror	 calling no witnesses	 or selecting such as	. in his discretion	 he thinks ought to be called	 and other matters which properly belong to the suit and the management and conduct of the trial we think he has not	 by virtue of his retainer in the suit	 any power over matters that are collat eral to it . . ". In Matthews vs Munster	 at 144	 Lord Esher M.R. stated: . The instances that are given shew that one of the things that counsel may do	 so long as the request of the client to him to act as advocate is in force	 is to assent to a verdict for a partic ular amount and upon certain conditions and terms; and the consent of the advocate to a verdict against his client and the withdrawing of imputations is a matter within the expres sion 'conduct of the cause and all that is incidental to it. ' If the client is in Court and desires that the case should go on and counsel refuses	 if after that he does not withdraw his authority to counsel to act for him	 and acquaint the other side with this	 he must be taken to have agreed to the course proposed. This case is a still stronger one	 for the client was not present	 and it is not pretended that he ever withdrew his authority to counsel	 but he now comes forward and asks that because he does not like what has been done it should be set aside as between himself and his opponent. This the Court will not do	 and this appeal must be dismissed. " See also Rondel vs Worsley	 [1965] 1 Q. B. 443	 502	 Per Lord Denning M.R. If this is the position of counsel in England	 Scotland and Ireland	 is his position the same in India in the con duct of cases in Court ? That the answer is affirmative	 there is high judicial authority. In (Babu) Sheonandan Prasad Singh & Ors. vs Hakim Abdul Fateh Mohammad Reza & .Anr.	 AIR 1935 PC 119	 121	 Lord Atkin	 speaking for 197 the Board	 states: ". As was laid down by this Board in 57 IA 133 (AIR 1930 PC 158) counsel in India have the same implied authority to compromise an action as have counsel in the English Courts. But if such authority is invoked to support an agreement of compromise the circumstances must be carefully examined. In the first instance the authority is an actual authority implied from the employment as counsel. It may however be withdrawn or limited by the client: in such a case the actual authority is destroyed or restricted; and the other party if in igno rance of the limitation could only rely upon ostensible authority. In this particular class of contract however the possibility of suc cessfully alleging ostensible authority has been much restricted by the authorities such as and which make it plain that if in fact counsel has had his authority withdrawn or restricted the Courts will not feel bound to enforce a com promise made by him contrary to the restric tion even though the lack of actual authority is not known to the other party. " Lord Atkin emphasises the need to rely on express au thority	 rather than implied authority	 particularly because of easier and quicker communication with the client. He says: ". In their Lordships ' experience both in this country and in India it constantly hap pens	 indeed it may be said that it more often happens	 that counsel do not take upon them selves to compromise a case without receiving express authority from their clients for the particular terms; and that this position in each particular case is mutually known between the parties. In such cases the parties are relying not on implied but on an express authority given adhoc by the client . . ". (ibid	 page 121) However	 collateral matters were understood to be beyond the scope of compromise. Lord Atkin says: "If the facts are as their Lordships assume	 the matter compromised was in their opinion collateral to the suit and not only would it not be binding on the parties	 but it would in any case be a matter in respect of which the Court in pursuance of 198 O. 23	 R. 3	 should not make a decree." (Page 122) Referring to the role of counsel in India and comparing him with his counterpart in Britain	 Lord Atkin in Sourendra Nath Mitra & Ors. vs Tarubala Dasi	 AIR 1930 PC 158	 says: " . . Their Lordships regard the power to compromise a suit as inherent in the position of an advocate in India. The considerations which have led to this implied power being established in the advocates of England	 Scotland and Ireland	 apply in equal measure to India. It is a power deemed to exist be cause its existence is necessary to effectuate the relations between advocate and client	 to make possible the duties imposed upon the advocate by his acceptance of the cause of his client. " Counsel 's power to compromise is vital to the defence of his party while engaged on his behalf in the thick of a legal battle in Court. Lord Atkin observes: "The advocate is to conduct the cause of his client to the utmost of his skill and under standing. He must in the interests of his client be in the position	 hour by hour	 almost minute by minute	 to advance this argument	 to withdraw that; he must make the final decision whether evidence is to be given or not on any question of fact; skill in advocacy is largely the result of discrimina tion. These powers in themselves almost amount to powers of compromise: one point is given up that another may prevail. But in addition to these duties	 there is from time to time thrown upon the advocate	 the responsible task of deciding whether in the course of a case he shall accept an offer made to him	 or on his part shall make an offer on his client 's behalf to receive or pay something less than the full claim or the full possible liability. Often the decision must be made at once . . "(ibid	 page 161) Emphasising the apparent authority of counsel	 and the raison d 'etre of such authority being the paramount interest of his client	 and not an appandage of office	 Lord Atkin states: "The apparent authority is derived from the known existence of the implied authority . . 199 First	 the implied authority of counsel is not an appandage of office	 a dignity added by the Courts to the status of barrister or advocate at law. It is implied in the inter ests of the client	 to give the fullest bene ficial effect to his employment of the advo cate. Secondly	 the implied authority can always be countermanded by the express direc tions of the client. No advocate has actual authority to settle a case against the ex press instructions of his client. If he con siders such express instructions	 contrary to the interests of his client	 his remedy is to return his brief. Their Lordships are unable to see why the above considerations should not apply to an advocate in India	 whose duties to his client in the conduct of a suit in no wise differ from those of advocates in England	 Scotland and Ireland . . ". (Page 161) Counsel 's role in entering into a compromise has been traditionally understood to be confined to matters within the scope of the suit. However	 a compromise decree may incorporate not only matters failing within the subject matter of the suit	 but also other matters which are collat eral to it. The position before the amendment in 1976 was that	 in respect of the former	 the decree was executable	 but in respect of the latter	 it was not executable	 though admissible as judicial evidence of its contents. Referring to section 375 of the Code of Civil Procedure (Act XIV of 1882)	 (similar to Order XXIII rule 3 CPC as it stood prior to the amendment of 1976)	 Lord Buckmaster	 in Hemanta Kumari Debi vs Midnapur Zamindari Co.	 AIR 1919 PC 79	 states: " . . In the first place	 it is plain that the agreement or compromise	 in whole and not in part	 is to be recorded	 and the decree is then to confine its operation to so much of the subject matter of the suit as is dealt with by the agreement . . although the operative part of the decree would be properly confined to the actual subject matter of the then existing litigation the decree taken as a whole would include the agreement. This in fact is what the decree did in the present case. It may be that as a decree it was incapable of being executed outside the lands of the suit	 but that does not prevent its being received in evidence of its con tents". (Page 81) In Ram Juwan vs Devendra Nath Gupta	 AIR 1960 Madhya Pradesh 200 280	 the High Court states: "Where a consent decree contains terms that do not relate to the suit . . such terms cannot be enforced in execution of the decree but they may be enforced as a contract by a separate suit". (Page 282) See also Vishnu Sitaram Auchat vs Ramachandra Govind Joshi	 AIR 1932 Bombay 466 and Jasimuddin Biswas vs Bhuban Jelini	 ILR 34 Calcutta 456. In Ganganand Singh & Ors. vs Rameshwar Singh Bahadur & Anr.	 	 the High Court points out that a consent decree does not stand on a higher footing than a contract between the parties. The Court always has the jurisdiction to set aside a consent decree upon any ground which will invalidate an agreement between the parties. In the absence of any such ground	 the consent decree is bind ing on the parties. Courts in India have consistently recognised the tradi tional role of lawyers and the extent and nature of their implied authority to act on behalf of their clients. Speak ing for a Full Bench of the Kerala High Court in Chengan Souri Nayakam vs A.N. Menon	 AIR 1968 Kerala 213	 K.K. Mathew	 J. (as he then was) observed: "The construction of a document appointing an agent is different from the construction of a vakalat appointing counsel. In the case of an agent the document would be construed strictly and the agent would have only such powers as are conferred expressly or by necessary impli cation. In the case of counsel the rule is otherwise because there we are dealing with a profession where well known rules have crys tallised through usage. It is on a par with a trade where the usage becomes an additional term of the contract	 if not contrary to the general law or excluded by express agreement." (p.215). About the special position of the advocate	 the learned Judge stated: Counsel has a tripartite relationship; one with the pub lic	 another with the court	 and the third with his client. That is a unique feature. Other professions or callings may include one or two of these relationships but no other has the triple duty. Counsel 's duty to the public is unique in that he has to accept all work from all clients in courts in which he holds himself out 201 as practicing	 however	 unattractive the case or the client." (p. 216) See also Jiwibai vs Ramkumar Shriniwas Murarka Agarwala	 AIR 1947 Nagpur 17; Govindammal vs Marimuthu Maistry & Ors.	 AIR 1959 Mad. 7 and Laxmidas Ranchhoddas & Ors. vs Savitabai Hargovindas Shah	 AIR 1956 Born. These principles were affirmed by this Court in Jamila bai Abdul Kadar vs Shankerlal Gulabchand & Ors. [1975] Supp. SCR 336. Referring to a number of decisions on the point	 V.R. Krishna Iyer	 J. observes: " . . Those who know how courts and counsel function will need no education on the jurisprudence of lawyer 's position and powers. Of course	 we hasten to enter a caveat. It is perfectly open to a party	 tike any other principal	 to mark out in the vakalat or by particular instructions forbidden areas or expressly withhold the right to act in sensi tive matters	 the choice being his	 as the master. If the lawyer regards these fetters as inconsistent with his position	 he may refuse or return the brief. But absent speaking instructions to the contrary	 the power to act takes in its wings the right and duty to save a client by settling the suit if and only if he does so bona fide in the interests and for the advantage of his client . . "(Page 346) See also Monoharbahal Colliery Calcutta vs K.N. Mishra & Ors.	 AIR 1975 SC 1632. After the amendment of 1976	 a consent decree	 as seen above	 is executable in terms thereof even if it comprehends matters falling outside the subject matter of the suit	 but concerning the parties. The argument of the appellant 's counsel is that the legislature has intended that the agreement or compromise should be signed by the parties in person	 because the responsibility for compromising the suit	 including matters falling outside its subject matter	 should be borne by none but the parties themselves. I1 this contention is valid	 the question arises why the legislature has	 presumably being well aware of the consistently fol lowed practice of the British and Indian Courts	 suddenly interfered with the time honoured role of lawyers in the conduct of cases without specifically so stating	 but by implication? Can the legislature be presumed to have funda mentally altered the position of counsel or a recognised agent	 as traditionally understood in the system of law and practice followed in India and other 'common law countries ' without expressly and directly so stating? There is	 202 no indication in preparatory work such as the 54th Report of the Law Commission dated 6.2.1973 or in the Statement of Objects and Reasons or in the words employed by the legisla ture that the concept of 'agents and pleaders ' of Order III	 C.P.C. was in any manner altered. There is no warrant for any such presumption. It is a rule of legal policy that law should be altered deliberately rather than casually. Legislature does not make radical changes in law by a sidewind	 but only by measured and considered provisions '. (Francis Bennion 's Statutory Interpretation	 Butterworth	 1984	 para 133). As stated by Lord Devlin in National Assistance Board vs Wilkinson	 "It is a well established principle of con struction that a statute is not to be taken as effecting a fundamental alteration in the general law unless it uses words that point unmistakably to that conclusion." Statutes relating to remedies and procedure must receive a liberal construction 'especially so as to secure a more effective	 a speedier	 a simpler	 and a less expensive administration of law '. See Crawford 's Statutory Construc tion	 para 254. The object of the amendment was to provide an appropriate remedy to expedite proceedings in Court. That object must be borne in mind by adopting a purposive con struction of the amended provisions. The legislative inten tion being the speedy disposal of cases with a view to relieving the litigants and the Courts alike of the burden of mounting arrears	 the word 'parties ' must be so construed as to yield a beneficent result	 so as to eliminate the mischief the legislature had in mind. There is no reason to assume that the legislature in tended to curtail the implied authority of counsel	 engaged in the thick of proceedings in court	 to compromise agree on matters relating to the parties	 even if such matters exceed the subject matter of the suit. The relationship of counsel and his party or the recognised agent and his principal is a matter of contract; and with the freedom of contract gener ally	 the legislature does not interfere except when war ranted by public policy	 and the legislative intent is expressly made manifest There is no such declaration of policy or indication of intent in the present case. The legislature has not evinced any intention to change the well recognised and universally acclaimed common law tradition of an ever alert	 independent and active. Bar with freedom to manoeuvre with force and drive for quick action in a battle of wits typical of the adversarial system of oral hearing which is in sharp contrast to the 203 inquisitorial traditions of the 'civil law ' of France and other European and Latin American countries where written submissions have the pride of place and oral arguments are considered relatively insignificant. (See Rene David	 English Law and French Law Tagore Law Lectures	 1980). 'The civil law ' is indeed equally efficacious and even older	 but it is the product of a different tradition	 culture and language and there is no indication	. whatever	 that Parliament was addressing itself to the task .of assim ilating or incorporating the rules and practices of that system into our own system of judicial administration. The Indian legal system is the product of history. It is rooted in our soil; nurtured and nourished by our culture	 languages and traditions; fostered and sharpened by our genius and quest for social justice; reinforced by history and heritage: it is not a mere copy of the English common law; though inspired and strengthened	 guided and enriched by concepts and precepts of justice	 enquiry and good con science which arc indeed the hallmark of the common law. In the words of M.C. Setalvad: " . . the common law of England with its statutory modifications and the doctrines of the English courts of equity has deeply coloured and influenced the laws and the system of judicial administration of a whole sub continent inhabited by nearly four hundred million people. The law and jurisprudence of this vast community and its pattern of judi cial administration are in many matters dif ferent from those of England in which they had their roots and from which they were nurtured. Yet they bear the unmistakable impress of their origin. The massive structure of Indian law and jurisprudence resembles the height	 the symmetry and the grandeur of the common and statute law of England. In it one sees English law in the distant perspective of a new atmosphere and a strange clime. " Speaking of the common law in the wider sense	 the learned author continues: ". But the English brought into India not only the mass of legal rules strictly known as the common law but also their traditions	 outlook and techniques in estab lishing	 maintaining and developing the judi cial system. When	 therefore	 I speak of the common law in India I have in view comprehen sively all that is of English origin in our system of law. In that wide meaning 204 the expression will include not only what in England is known strictly as the common law but also its traditions	 some of the princi ples underlying the English statute law	 the equitable principles developed in England in order to mitigate the rigours of the common law and even the attitudes and methods pervad ing the British system of the administration of justice." The Common Law in India	 1960 The Hamlyn Lectures	 Twelth Series	 pp.1 4. After the attainment of independence and the adoption of the Constitution of India	 judicial administration and the constitution of the law courts remained fundamentally un changed	 except in matters such as the abolition of appeals to the Privy Council	 the constitution of the Supreme Court of India as the apex court	 the conferment of writ jurisdic tion on all the High Courts	 etc. The concept	 structure and organisation of Courts	 the substantive and procedural laws	 the adversarial system of trial and other proceedings and the function of judges and lawyers remained basically unaltered and rooted in the common law traditions in contra distinction to those prevailing in the civil law or other systems of law. In our own system of judicial administration	 if strains have developed and cracks have appeared by the stresses and 2pressures of the time; if aberrations have become too obvious to be ignored or too deeprooted to be corrected by an internal mechanism; if the traditional role of the legal profession requires urgent legislative scrutiny with a view to remedying the defects and strengthening and safeguarding the system; it is a matter exclusively for Parliament to consider; but the amendment in question is not addressed to that purpose. Aberrations there always have been in every system of administration; but whether they are merely peripheral or transient in character mere ripples on a placid pool or symptomatic of deeper malady requiring structural modifica tion by prompt legislative intervention is a matter of grave significance for the jurists	 sociologists and political scientists to ponder over. So long as the system of judicial administration in India continues unaltered	 and so long as Parliament has not evinced an intention to change its basic character	 there is no reason to assume that Parliament has	 though not express ly	 but impliedly reduced counsel 's role or capacity to represent his client as effectively as in the past. On a matter of such vital importance	 it is most unlikely that Parliament would have resorted 205 to implied legislative alteration of counsel 's capacity or status or effectiveness. In this respect	 the words of Lord Atkin in Sourendra (supra) comparing the Indian advocate with the advocate in England	 Scotland and Ireland	 are significant: There are no local conditions which make it less desirable for the client to have the full benefit of an advocate 's experience and judg ment. One reason	 indeed	 for refusing to imply such a power would be a lack of confi dence in the integrity or judgment of the Indian advocate. No such considerations have been or indeed could be advanced	 and their Lordships mention them but to dismiss them . . (Page 161) Similar is the view expressed by the Rajasthan High Court in Mohan Bai vs Jai kishan	 AIR ; Smt. Mohan Bai vs Smtjai kishan & Ors.	 AIR and by the Gujarat High Court in Nadirsha Hirji Baria & Ors. vs Niranjankumar alias Nireshkumar Dharamchand Shah & Ors. 	 A contrary view has been ex pressed by the Andhra Pradesh High Court in Kesarla Raghu ram. vs Dr. Narsipalle Vasundara	 AIR 1983 Andhra Pradesh 32	 and it does not commend itself to us. We may	 however	 hasten to add that it will be prudent for counsel not to act on implied authority except when warranted by the exigency of circumstances demanding immedi ate adjustment of suit by agreement or compromise and the signature of the party cannot be obtained without undue delay. In these days of easier and quicker communication	 such contingency may seldom arise. A wise and careful coun sel will no doubt arm himself in advance with the necessary authority expressed in writing to meet all such contingen cies in order that neither his authority nor integrity is ever doubted. This essential precaution will safeguard the personal reputation of counsel as well as uphold the pres tige and dignity of the legal profession. Considering the traditionally recognised role of counsel in the common law system	 and the evil sought to be remedied by Parliament by the C.P.C. (Amendment) Act	 1976	 namely	 attainment of certainty and expeditious disposal of cases by reducing the terms of compromise to writing signed by the parties	 and allowing the compromise decree to comprehend even matters falling outside the subject matter of the suit	 but relating to the parties	 the legislature cannot	 in the absence of express words to such effect	 be presumed to have disallowed the parties to enter into a compromise by counsel in their cause or by their duly authorised agents. Any 206 such presumption would be inconsistent with the legislative object of attaining quick reduction of arrears in Court by elimination of uncertainties and enlargement of the scope of compromise. To insist upon the party himself personally signing the agreement or compromise would often cause undue delay	 loss and inconvenience	 especially in the case of non resident persons. It has always been universally understood that a party can always act by his duly authorised representative. If a power of attorney holder can enter into an agreement or compromise on behalf of his principal	 so can counsel	 possessed of the requisite authorisation by vakalatnama	 act on behalf of his client. Not to recognise such capacity is not only to cause much inconvenience and loss to the parties personally	 but also to delay the progress of proceedings in court. If the legislature had intended to make such a funda mental change	 even at the risk of delay	 inconvenience and needless expenditure	 it would have expressly so stated. Accordingly	 we are of the view that the words 'in writing and signed by the parties '	 inserted by the C.P.C. (Amendment) Act	 1976	 must necessarily mean	 to borrow the language of Order II1 rule 1 C.P.C.: "any appearance application or act in or to any court	 required or authorized by law to be made or done by a party in such court	 may except where otherwise expressly provided by any law for the time being in force	 be made or done by the party in person	 or by his recognized agent	 or by a pleader	 appearing	 applying or acting as the case may be	 on his behalf: Provided that any such appearance shall	 if the court so directs	 be made by the party in person". (emphasis supplied) In the present case	 the notice issued under Order XXI rule 22 was personally served on the defendant	 but he did not appear or show cause why the decree should not be exe cuted. The notice was accordingly made absolute by Order dated 23.1.1990 and leave was granted to the plaintiff to execute the decree. The decree passed by the High Court on 18.6.1984 in terms of the compromise was a valid decree and it constituted res judicata. As stated by this Court in Shankar Sitaram Sontakke & Anr. vs Balkrishna Sitaram Son takke & Ors.; 	 ". It is well settled that a consent decree is as binding upon the parties thereto as a decree passed by invitum. The com 207 promise having been found not to be vitiated by fraud	 misrepresentation	 misunderstanding or mistake	 the decree passed thereon has the binding force of 'res judicata '. " (Page 355) S.R. Das	 C.J.	 in Sailendra Narayan Bhanja Deo vs The State of Orissa	 ; 	 states: ". a judgment by consent or default is as effective an estoppel between the parties as a judgment whereby the court exercises its mind on a contested case . ". (Page 351) A judgment by consent is intended to stop litigation between the parties just as much as a judgment resulting from a decision of the court at the end of a long drawn out fight. A compromise decree creates an estoppel by judgment. As stated by Spencer Bower & Turner in Res Judicata Second Edition	 page 37: "Any judgment or order which in other respects answers to the description of a res judicata is nonetheless so because it was made in pursuance of the consent and agreement of the parties . Accordingly	 judgments	 orders	 and awards by consent have always been held no less efficacious as estoppels than other judgments	 orders or decisions	 though doubts have been occasionally expressed whether	 strictly	 the foundation of the estoppel in such cases is not representation by conduct	 rather than res judicata . . . . ". See also Mohanlal Goenka vs Benoy Kishna Mukherjee & Ors.	 ; The consent decree made on 18.6.1984 remained unchal lenged. None questioned it. The appellant never raised any doubt as to its validity or genuineness. He had no case that the decree was vitiated by fraud or misrepresentation or his counsel lacked authority to enter into a compromise on his behalf. Nevertheless	 after six years he questioned its validity by means of chamber summons. This was an unsuccess ful challenge by reason of delay	 estoppel or res judicata	 and was rightly so held by the High Court. Accordingly	 we see no merit in this appeal. It is dismissed. However	 in the circumstances of the case	 we do not make any order as to costs. V.P.R. Appeal dismissed.

Summary:
Before this Court	 the appellant defendant challenged the judgment of the High Court which held that the decree made against the defendant 'in terms of a compromise in writing and signed by the counsel representing the parties was valid and binding on the parties	 and that in the ab sence of any challenge against the order made under Order XXI	 rule 23	 Civil Procedure Code	 allowing execution of the decree	 the defendant was no longer entitled to resist execution by recourse to Chamber Summons. The appellant contended that the High Court was wrong in holding that	 notwithstanding the amendment of 1976 insert ing the words 'in writing and signed by the parties '	 it was still sufficient if the terms of compromise were reduced to writing and signed by counsel representing the parties	 and not necessarily by the parties in person	 and that a decree based on a compromise not signed by the parties in person was a nullity and was incapable of execution. The respondents submitted that it was always under stood that the expression 'party ' included his pleader in matters relating to appearance in court	 and his counsel in the cause	 therefore	 had express or implied authority	 unless specifically withdrawn or limited by the party	 to represent him in court and do whatever was necessary in connection with the conduct of his suit including adjustment of the suit by agreement or compromises. 188 Dismissing the appeal	 this Court	 HELD:. Counsel 's role in entering into a compromise has been traditionally understood to be confined to matters within the scope of the suit. However	 a compromise decree may incorporate not only matters failing within the subject matter of the suit	 but also other matters which are collat eral to it. The position before the amendment in 1976 was that	 in respect of the former	 the decree was executable	 but in respect of the latter	 it was not executable	 though admissible as judicial evidence of its contents. [199 C D] 2. After the amendment of 1976	 a consent decree	 is executable in terms thereof	 even if it comprehends matters failing outside the subject matter of the suit	 but concern ing the parties. [201 E] 3. The object of the amendment of Order XXIII	 Rule 3	 C.P.C. was to provide an appropriate remedy to expedite proceedings in Court. That object must be borne in mind by adopting a purposive construction of the amended provisions. The legislative intention being the speedy disposal of cases with a view to relieving the litigants and the Courts alike of the burden of mounting arrears	 the word 'parties ' must be so construed as to yield a beneficent result	 so as to eliminate the mischief the legislature had in mind. [202 D E] 4. There is no reason to assume that the legislature intended to curtail the implied authority of counsel	 en gaged in the thick of proceedings in court	 to compromise or agree on matters relating to the parties	 even if such matters exceed the subject matter of the suit. The relation ship of counsel and his party or the recognised agent and his principal is a matter of contract; and with the freedom of contract generally	 the legislature does not interfere except when warranted by public policy	 and the legislative intent is expressly made manifest There is no such declara tion of policy or indication of intent in the present case. The legislature has not evinced any intention to change the well recognised and universally acclaimed common law tradi tion of an ever alert	 independent and active Bar with freedom to manoeuvre with force and drive for quick action in a battle of wits typical of the adversarial system of oral heating which is in sharp contrast to the inquisitorial traditions of the 'civil law 'of France and other European and Latin American countries where written submissions have the pride of place and oral arguments are 189 considered relatively insignificant. [202 E H] 5. Considering the traditionally recognised role of counsel in the common law system	 and the evil sought to be remedied by Parliament by the C.P.C. (Amendment) Act	 1976	 namely attainment of certainty and expeditious disposal of cases by reducing the terms of compromise to writing signed by the parties	 and allowing the compromise decree to com prehend even matters falling outside the subject matter of the suit	 but relating to the parties	 the legislature cannot	 in the absence of express words to such effect	 be presumed to have disallowed the parties to enter into a compromise by counsel in their cause or by their duly autho rised agents. Any such presumption would be inconsistent with the legislative object of attaining quick reduction of arrears in Court by elimination of uncertainties and en largement of the scope of compromise. [205 F H] 6. A judgment by consent is intended to stop litigation between the parties just as much as a judgment resulting from a decision of the court at the end of a long drawn out fight. A compromise decree creates an estoppel by judgment. [207 B] 7. In the present case	 the notice issued under Order XXI rule 22 was personally served on the defendant	 but he did not appear or show cause why the decree should not be executed. The notice was accordingly made absolute by order dated 23.1.1990 and leave was granted to the plaintiff to execute the decree. The decree passed by the High Court on 18.6.1984 in terms of the compromise was a valid decree and it constituted res judicata. [206 F G] 8. The consent decree made on 18.6.1984 remained unchal lenged. None questioned it. The appellant never raised any doubt as to its validity or genuineness. He had no case that the decree was vitiated by fraud or misrepresentation or his counsel lacked authority to enter into a compromise on his behalf. Nevertheless	 after six years he questioned its validity by means of chamber summons. This was an unsuc cessful challenge by reason of delay	 estoppel or res judi cata. [207 E F] Halsbury 'section Laws of England	 4th Ed. Vol.3	 Paras 1181 & 1183; Francis Bennion 's Statutory Interpretation	 Butter worths	 1984	 para 133; Crawford 's Statutory.	 Construction	 Para 254; Rene David	 English Law and French Law Tagore Law Lectures	 1980; Spencer Bower to Turner in Res 190 Judicata	 Second Edition	 Page 37; The Common Law in India 1960 The Hamlyn Lectures	 Twelfth Series. pp 1 4	 referred to. Patience Swinfen vs Lord Chelmsford	 [1860]5 H & N 890 at 912; S.C.(Ex.) 382; Mathews vs Munster	 [1887] 20 Q.B. 141 at 144; Rondel vs Worsley	 [1965] 1 Q.B. 443	502; (Babu) Sheonandan Prasad Singh &Ors. vs Hakim Abdul Fateh Mohammed Reza & Anr.	 AIR 1935 P.C. 119	121; Sourendera Nath Mitra & Ors. vs Tarubala Dasi	 AIR 1930 P.C. 158; Hemanta Kumari Debi vs Midnapur Zamindari Co.	 AIR 1919 PC 79; Jamilabai Abdul Kadar vs Shankerlal Gulabchand & Ors.	 [1975] Supp. SCR 336; Monoharbahal Colliery	 Calcutta vs K.N. Mishra & Ors.	 AIR 1975 SC 1632; National Assistance Board vs Wilkin son	 ; Sailendra Narayan Bhania Deo vs The State of Orissa	 ; ; Mohanlal Goenka vs Benoy Kishna Mukherjee & Ors.	 ; 	 Shankor Sitaram Sontakke & Anr. vs Balkrishna Sitaram Sontakke & Ors. ; 	 referred to. Ram Juwan vs Devendra Nath Gupta	 AIR 1960 M P. 280; Vishnu Sitaram Auchat vs Ramchandra Govind Joshi	 AIR 1932 Bombay 466; Jasimuddin Biswas vs Bhuban Jelini	 ILR 34 Calcutta 456; Ganganand Singh & Ors. vs Rameshwar Singh Bahadur & Anr	 ; Chengan Soun	 Nayakam vs A.N. Menon	 AIR 1968 Kerala 213; Jiwibai vs Ramkumar Shrini was Murarka Agarwala	 AIR 1947 Nagpur 17; Govindamreal vs Marimuthu Maistry & Ors.	 AIR 1959 Mad 7; Laxmidas Ranchhod das & Ors. vs Savitabai Hargovindas Shah	 AIR 1956 Bombay 54; Mohan Bat vs Jai Kishan	 AIR ; Smt. Mohan Bat vs Smt. Jai kishan & Ors.	 AIR 	 Nadirsha Hirji Bana & Ors. v Niranjanlkumar alias Nireshku mar Dharamchand Shah & Ors.	 	 approved. Kesarla Raghuram vs Dr. Narsipalle Vasundara	 A.I.R. 1983 A .P. disapproved.