Deb Ratan Biswas and
Others Vs Most. Anand Moyi Devi & Others
J U D G M E N T
Markandey Katju, J.
appeal has been filed against the impugned judgment and order dated 21.5.2004
passed by learned Single Judge of the Patna High Court in Civil revision No.
945 of 2002.
facts have been stated in the impugned judgment and we are not repeating the
same except where necessary.
appears that a Title Suit No. 186 of 1984 by one Nrisingha Prasad Biswas and
his four sons (who are the appellants herein) was filed against the respondents
herein before the Subordinate Judge-V, Bhagalpur for partition of certain
properties. While the aforesaid partition suit was pending, the defendants Smt.
Pushpa Biswas and Apurva Kumar Biswas executed a General Power of Attorney on 31.7.1992
in favour of Umesh Chandra and Dr. Sanjeev Kumar Mishra and the same was registered.
The terms and conditions giving the powers to the attorneys were specifically set
out in the Power of Attorney itself.
30.7.1996, the parties to the suit including Pushpa Biswas and Apurva Kumar
Biswas filed a compromise petition which was forwarded to the Sheristedar for scrutiny
and report. On 31.7.1996, on receiving the report of the Sheristedar dated 330.7.1996,
the Subordinate Judge V, Bhagalpur approved the terms of the compromise and directed
that a decree be passed in terms of the compromise.
on 29.8.1996, a petition purporting to be on behalf of Pushpa Biswas and Apurva
Kumar Biswas was filed through the attorney Dr. Sanjeev Kumar Mishra under
Section 151 CPC being Miscellaneous Case No. 13/16 of 1996 praying for recalling
the order dated 31.7.1996 passed in terms of the compromise on the allegation that
the signatures on the compromise were forged.
7.6.2002, the learned Subordinate Judge-V, Bhagalpur held that Miscellaneous Petition
filed at the instance of only one of the attorneys was not maintainable, as
according to the terms of the power of attorney both the constituted attorneys
were entrusted to act jointly. Hence, he dismissed the Miscellaneous Case filed
by Dr. Sanjeev Kumar Mishra.
that order dated 7.6.2002, the respondents herein filed a Civil Revision being
Civil Revision No. 945 of 2002 which was allowed by the impugned judgment, and
hence this appeal.
the order dated 7.6.2002 in Misc. Case No. 13/96, the learned Subordinate
Judge-V, Bhagalpur considered the prayer of the applicant in that Miscellaneous
Case that the the compromise petition had not been signed by the petitioners
and their signatures were forged. The finding of fact recorded by the learned Subordinate
Judge-V, Bhagalpur after detailed discussion of the evidence was that there was
no forgery. This finding is based on material on record and it is a finding of
fact. Hence it could not have been validly interfered with in Civil Revision by
the High Court.
his order dated 7.6.2002, the learned Subordinate Judge-V Bhagalpur has held that
Dr. Sanjeev Kumar Mishra was only an attorney and he cannot claim any independent
capacity in the proceedings. We agree with this view. The principal Pushpa 5Biswas
and Apurva Kumar Biswas have signed the compromise for partition of the
property, which in our opinion in law amounts to implied revocation of power of
attorney in favour of Dr. Sanjeev Kumar Mishra vide Illustration to Section 207
of the Indian Contract Act. Pushpa Biswas and Apurva Kumar Biswas cannot be allowed
to say that their own act of signing the compromise petition was collusive and
learned Subordinate Judge-V, Bhagalpur has gone into the evidence in great detail
and recorded findings of fact which could not have been interfered with by the High
Court in civil revision. It is well settled that in civil revision the
jurisdiction of the High Court is limited, and it can only go into the
questions of jurisdiction, but there is no error of jurisdiction in the present
have carefully perused the impugned judgment of the High Court. The High Court
has observed that defendants Nos. 2 and 2a viz., Pushpa Biswas and Apurva Kumar
Biswas should 6have consulted the power of attorney Dr. Sanjeev Kumar Mishra before
signing the compromise petition. This is a strange kind of reasoning. The principal
is not bound to consult his attorney before signing a compromise petition.
High Court has also held that if Dr. Sanjeev Kumar Mishra was not willing to sign
the compromise petition his unwillingness should have been mentioned in the compromise
petition. This also is a strange reasoning. It is well-settled that even after
execution of a power of attorney the principal can act independently and does not
have to take the consent of the attorney. The attorney is after all only an
agent of the principal. Even after executing a power of attorney the principal
can act on his own.
the reasons given above this appeal is allowed. The impugned judgment and order
of the High Court is set aside and the order dated 7.6.2002 of the learned Subordinate
Judge-V, Bhagalpur is restored. There shall be no order as to costs.
(Gyan Sudha Misra)
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