T. N. VALLINAYAGAM, J. ( 1 ) HEARD the respective counsel. The Indian Overseas Bank is the petitioneer aggrieved by the order passed on the application filed under Order 9, Rule 13 setting aside the decree dated 31-8-1989 in 1997 at the instance of the surety, the 2nd defendant on the ground that the surety signature has been forged on all the documents including the Court records, suit summons as well as the Bank records. ( 2 ) THE learned Judge has chosen to accept the version of the surety and set aside the decree in its entirety. It is that order challenged before me in this C. R. P. ( 3 ) BASICALLY, the order passed by the Court below is not sustainable as the Court has no jurisdiction to set aside the decree as against the first defendant, the main borrower. If at all, the decree can be set aside only as against the surety who come forward with the grievance. On this ground alone this order has to be set aside. ( 4 ) IT appears from the facts that the suit was filed by the Bank against main borrower as well as the 2nd defendant who is described as surety and both the defendants were served. Though they were absent on the date of hearing, Advocate filed Vakalath for both the defendants; on a compromise petition under Order 23, Rule 3, CPC, the suit was decreed permitting the defendants to pay the money in instalments. ( 5 ) IT is the case of the petitioner in C. Mis. 1/1996, who is the 2nd defendant in the suit that he came to know about the said decree on 16-2-1991 i. e. after a period of two years when the plaintiff Bank came to his house to attach his properties. Even on his knowing about the decree in 1991, the said decree was set aside after five years in C. Mis. No. 1/1996, he further described that an application was filed under Section 5 of the Limitation Act; but that was allowed for the reasons best known to the Court below and the Bank was equally not vigilant in prosecuting and further questioning the said order; however, this application was taken on file and the averments made therein was believed by the learned Judge and set aside the decree in toto. ( 6 ) IT is submitted that once the suit is decreed, it cannot be construed as ex parte decree at all; it is further submitted that the whole story of the 2nd defendant surety claiming that everything is forged is neither believable nor acceptable and there is no reason for him to wait for five years to approach the Court after he came to know about the judgment in 1991; evidently he thought that the decree can be realised only against the first defendant, the principal borrower as at that time execution was pending and under that impression, he kept quiet and slept over his right. When he discovered that the first defendant, the principal borrower is not having sufficient means to repay the decretal amount and is going to affect the petitioner/1st respondent herein came forward with an application to set aside the alleged ex parte decree. Heard the respective counsel. ( 7 ) ORDER 23, Rule 3 reads as follows :-3. Compromise of suit 1. Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise, in writing and signed by the parties or where the defendant satisfies 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. "order 23, Rule 3 (a) is worthwhile to be noted which is introduced by the amending Act 104 of 1976. 3-A. Bar of suit 1. No suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful. This petition is very clear and when the records clearly shows that the said suit was decreed only on the basis of a compromise petition filed by both the counsels and vakalath filed by them, it cannot be said that such a petition is not valid in the eye of law. Describing the word used in Order 23, Rule 3, it can be safely held that the compromise petition was filed with the consent of the parties. Describing the word used in Order 23, Rule 3, it can be safely held that the compromise petition was filed with the consent of the parties. Earlier the position was different. Even if the Advocates signed a compromise memo, it has been recognised that it is binding on the parties. In fact various citations have been cited by the learned counsel that a compromise signed only by the Advocate is valid in the eye of law. In fact, the Vakalath filed in the Court reads as follows:-2. I/we hereby authorise him/them on my/our behalf to enter into a compromise in the above matter, to execute any decree/order therein, to appeal from any decree/order therein and to appear, to act and plead in such appeal or in any appeal preferred by any other party from any decree/order therein. " ( 8 ) BUT after the amendment, the position appears to be different. However there is an exception to such a position and this has been settled by this Court by a Division Bench decision in ILR 1993 Kant 584 (Deputy General Manager v. Kamappa) which is to the following effect :-"indeed, it is seen from para-2 of the Vakalathnama that the Advocate has also been authorised to enter into a compromise and to act in furtherance therein to safeguard the interest of the signatory. Accordingly, the Advocate who was authorised to appear and act on behalf of the appellant, rightly consented to the compromise petition filed before the Lok Adalath. Acting on such a compromise petition filed on behalf of both parties, the Court passed an order based on which an award came to be passed by the Court below which cannot be found fault with by the appellant. The words 'in writing and signed by the parties', inserted in Order 23, Rule 3, C. P. C. by the C. P. C. (Amendment) Act, 1976 necessarily mean and include duly authorised representative and counsel. Thus a Compromise in writing and signed by counsel representing the parties, but not signed by the parties in person, is valid and binding on the parties and is executable even if the compromise relates to matters concerning the parties, but extending beyond the subject-matter of the suit. Thus a Compromise in writing and signed by counsel representing the parties, but not signed by the parties in person, is valid and binding on the parties and is executable even if the compromise relates to matters concerning the parties, but extending beyond the subject-matter of the suit. 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. "in fact the words "in writing and signed by the parties" has been interpreted by the Supreme Court in (Byram Pestonji Gariwala v. Union Bank of India, AIR 1991 SC 2234 ) which is to the following effect :-"the words 'in writing and signed by the parties' inserted in O. 23, R. 3, C. P. C. by the C. P. C. (Amendment) Act, 1976 necessarily mean and include duly authorised representative and counsel. Thus a compromise in writing and signed by counsel representing the parties but not signed by the parties in person, is valid and binding on the parties and is executable even if the compromise relates to matters concerning the parties, but extending beyond the subject-matter of the suit. 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. 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 falling within the subject-matter of the suit, but also other matters which are collateral 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. After the C. P. C. amendment of 1976, a consent decree is executable in terms thereof even if it comprehends matters falling outside the subject matter of the suit, but concerning the parties. There is no indication in preparatory work such as the 54th Report of the Law Commission dated. After the C. P. C. amendment of 1976, a consent decree is executable in terms thereof even if it comprehends matters falling outside the subject matter of the suit, but concerning the parties. There is 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 legislature that concept of 'agents and pleaders' of Order III, C. P. C. was in any manner altered. There is no warrant for any such presumption. There is no reason to assume that the legislature intended to curtail the implied authority of counsel, engaged 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 relationship 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 declaration of policy or indication of intent in amended O. 23, R. 3. The legislature has not evidenced 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 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. 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 expressly, 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 to implied legislative alteration of counsel's capacity or status or effectiveness. On a matter of such vital importance, it is most unlikely that Parliament would have resorted to implied legislative alteration of counsel's capacity or status or effectiveness. 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 such presumption would be inconsistent with the legislative object of attaining quich reduction of arrears in Court by elimination of 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 Vakalathnama, 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 delay the progress of proceedings in Court. If the legislature had intended to make such a fundamental change, even at the risk of delay, inconvenience and needless expenditure, it would have expressly so stated. " ( 9 ) IN the light of the above dictum, it must be held that the compromise entered into by the counsel, who signed on behalf of the 2nd defendant is certainly binding on him. The question of setting aside such a compromise does not arise unless there was a right on which the defendant filed an application under the proviso to Order 23, Rule 3, which has not been admittedly done in this case. ( 10 ) IF at all the decree was attacked on the ground of fraud, Rule 3 (a) cannot be extended to a case which is attacked on the question of fraud. ( 10 ) IF at all the decree was attacked on the ground of fraud, Rule 3 (a) cannot be extended to a case which is attacked on the question of fraud. It is rightly pointed out by the learned counsel for the petitioner that no fraud has been pleaded under Order 6, Rule 4, C. P. C. Order 6, Rule 4 (2) reads as follows:-In a suit for infringement of a patent, the plaintiff shall state in his plaint or annex thereto the particulars of the breaches relied upon, and the defendant if he disputes the validity of the patent shall state in his written statement or annex thereto the particulars of the objections on which he relies in support of such invalidity; at the hearing of any such suit no evidence, shall, except with the leave of the Court (to be given upon such terms as to the Court may seem just), be admitted in proof of any alleged infringement or objections not raised in the particulars of breaches or objections respectively. Therefore, the particulars of the fraud must be pleaded and without pleading as such, the question of fraud will not arise at all. In fact in the dictum of Supreme Court in AIR 1977 SC 615 : (1977 Lab IC 290) (V. S. Vishwavidyalay v. Dr. Rajkishore Tripathi), the Supreme Court has held "fraud to be specifically pleaded" - it is not sufficient to plead in general terms that there was "collusion" without giving particulars. In this case, admittedly the fraud has not been pleaded excepting that the 2nd defendant wants everybody to believe him when he was total stranger to the whole of transaction, who is, as already pointed out is prima facie unbelievable and against any human conduct. Not a single word is said about the first defendant in the whole of the case or proceedings before the trial Court as to why the first defendant has chosen to do this kind of action against the 2nd defendant. What was his motive? What was his object? The fact that there was a delay of five years after coming to know about the decree is the one proof enough to hold that the 2nd defendant is consciously aware of what is happening around him. What was his motive? What was his object? The fact that there was a delay of five years after coming to know about the decree is the one proof enough to hold that the 2nd defendant is consciously aware of what is happening around him. Unfortunately, the learned Judge who has decided the case has not considered or taken note of Order-9, Rule-13 of CPC, Order-9, Rule-13 cannot be extended to such a way as to cut short or go into an order passed under Order-23, Rule-3, CPC Order-9, Rule-13 is extracted below :-13. Setting aside decree ex-parte against defendant 1. In any case in which a decree is passed ex-parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit; Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also;provided further that no Court shall set aside a decree passed ex-parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim. EXPLANATION 1. Where there has been an appeal against a decree passed ex-parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex-parte decree. KARNATAKA AMENDMENTOr. 9, R. 13 1. Provided further that no such decree shall be set aside merely on the ground of irregularity in the service of summons, if the Court is satisfied that the defendant knew the date of hearing, in sufficient time to enable him to appear and answer the plaintiff's claim. KARNATAKA AMENDMENTOr. 9, R. 13 1. Provided further that no such decree shall be set aside merely on the ground of irregularity in the service of summons, if the Court is satisfied that the defendant knew the date of hearing, in sufficient time to enable him to appear and answer the plaintiff's claim. The above provisions clearly show that only in case where the decree is passed ex-parte against the defendant, (sic) Order-9, Rule-13 is applied and not otherwise. Such a procedure is certainly known to law and the learned trial Judge has failed to consider this legal position with all his preception. ( 11 ) I am satisfied that the Order passed by the trial Court is not sustainable in the eye of law and on facts. ( 12 ) IN the above circumstances, this Civil Revision Petition is allowed and consequently Miscellaneous Case No. 1/1996 is dismissed. The Registrar General is directed to send a copy of this Judgment to the Judge who has decided Miscellaneous No. 1/1996, so that he can understand this legal position to be followed in future. Accordingly, this C. R. P. is allowed. No Costs. --- *** --- .