Sitaram Sawhney and Another Vs Kundanlal Sahni and Others

A.N. Ray, J.@mdashThis appeal is from the judgment and order of Banerjee, J., in insolvency proceedings. The judgment is dated 21 June 1966.

It will appear from the order that the parties appearing having consented to an order being made it was ordered that the debtors Bharat Tea Co.

and its partners Krishanlal Sawhney, Sitaram Sawhney and Sri Ram Sawhney shall pay to the applicant creditor a sum of Rs. 3,000/- on 25 June,

1966 and shall thereafter pay month by month beginning from the month of July 1966 within the last date of each succeeding month a sum of Rs.

3,0001-and shall go on making such payments until the debt is paid up and liquidated. It was further provided in the order that in default of paying

the money within 25 June 1966 and in default of making two successive payments of Rs. 3,000/- an adjudication order is deemed to have been

made in respect of the estate of Bharat Tea Company, Krishanlal Sawhney. Sitaram Sawhney and Sri Ram Sawhney and in respect of partnership

firm Bharat Tea Company, the said persons and the said firm carrying on business at 17, Ezra Street, Calcutta and Sitaram Sawhney and Sri Ram

Sawhney at present residing at 67/7, Main Rothak Road (also known as New Rohtak Road), New Delhi-5. The further order was that the Official

Assignee shall continue to act as such Receiver until the debt is paid off and the Official Assignee as such Receiver shall be entitled to his

commission under Rule 13 of the Accounts Rule at one per cent on the valuation of the properties at Rs. 55,000/-. It is also provided that if the

debtors do not pay the commission to the Receiver the applicant creditor shall pay the same to him in the first instance and any sum so paid to the

Official Assignee be added to the amount of the debt and the same shall be repaid by the debtors by installments. Finally it is provided that the

Official Assignee as Receiver will hand over the property to the debtors after the debt is paid off and liquidated including the commission. In the

first paragraph of the judgment of the it is said that by consent it was ordered that the debtors shall pay to the creditor a sum of Rs. 3,000/- within

a week of the judgment and thereafter would pay month by month a sum of Rs. 3,000/- until the debt was paid off and liquidated. It is also stated

in the judgment that if the debtors make default in payment of the installments month by month, an order in terms of prayer (i) of the Notice of

Motion shall be deemed to have been made on the date of such default and in that event the debtors will be liable to the costs of this application.

The Official Assignee was also directed by the judgment to continue as interim Receiver until the debt was paid off. The Official Assignee was also

entitled under the judgment to commission and if the Official Assignee was not paid, the petitioner was at liberty to pay the same and add the

amount so paid to his claim and the debtors would be liable for the entire amount.

2.The appellants are Sitaram Sawhney and Sri Ram Sawhney.

3. Counsel on behalf of the appellants contended first, that the order is contrary to law inasmuch as it was made without proof of service of the

petition upon the appellants as required under the Insolvency Act and Rules there under. The second contention was that the order was contrary to

law inasmuch as the court did not require proof nor make any finding as to act of insolvency which is the very foundation of an adjudication order.

Reference was made to sections 9, 10, 12, 13, 51 and 52 of the Presidency Towns Insolvency Act and Rules 74-80, 94(1) & 94(2) & Form No.

10 in support of the contention that the order violated the provisions of the Act and Rules by not mentioning the act of insolvency. The third

contention was that the entire order was bad because it is made by consent of parties and the court did not have any such power to make the

order.

4. The contentions on behalf of the respondents are first that the order is not appeal able because the parties consented to the order, secondly that

the order is not entirely based on consent but the court applied its mind to the facts of the case and made an order at the invitation of and

accompanied by the consent of the parties and thirdly that the questions raised by the appellants are not the subject-matter of appeal.

5. The application was made on 2 March 1966 and the Notice of Motion was taken out on 23 March 1966. The parties to the Notice of Motion

were Bharat Tea Company, a firm, Krishan Lal Sawhney, Sitaram Sawhney and Sri Ram Sawhney. The firm was described as carrying on

business at No. 17. Ezra Street, Calcutta, Krishan Lai Sawhney carrying on business at No. 17, Ezra Street, Calcutta and Sitaram Sawhney and

Sri Ram Sawhney were described as regarding at No. 67/7, Main Rohtak Road, New Delhi. The applicant was Kundanlal Sahni a creditor The

applicant asked for an adjudication order in respect of the estate of (a) Bharat Tea Company, (b) Krishanlal Sawhney, (c) Sitaram Sawhney and

(d) Sri Ram Sawhney and in respect of partnership firm of Bharat Tea Company, the said persons and the firm carrying on business at No. 17,

Ezra Street. Calcutta and Sitaram Sawhney and Sri Ram Sawhney residing at No. 67/7. Main Rohtak Road, New Delhi-5.

6. In paragraph 4 of the petition the creditor alleged that on or about 1 August 1963 the creditor instituted a suit in this court upon six hundis which

were made and drawn by Bharat Tea Company for the total sum of Rs. 30,058 and 6 paise upon Krishanlal Sawhney Krsihanlal Sawhney

accepted the said hundis. In the said suit Bharat Tea Company and Krishan Lal Sawhney made an application for leave to defend. They were

granted leave to defend on condition that the defendants would furnish security of Rs. 30,000/-within 18 November 1963. The defendants made

three applications for extension of time to furnish security and time to furnish security was extended till 21 December 1963. The defendants failed

to furnish security. On or about 24 January 1964 a decree was passed by this court for a sum of Rs. 30,058,06 paise with interest on the principal

sum of Rs 30.000/- at the rate of six per cent from 1 August 1963 till realisation.

7. In paragraph 9 of the petition the creditor alleged the acts of insolvency. First, it is alleged that in execution of the decree the creditor made an

application for attachment of the goodwill of the business of Bharat Tea Co., and its tenancy rights in respect of two rooms on the first floor of

premises No. 17, Ezra Street, Calcutta. Secondly, it is alleged that on or about 2 December 1965 an ad-interim order of attachment of the

goodwill and of the tenancy rights of Bharat Tea Company was passed by this court. The ad-interim order was made absolute on consent by

Bharat Tea Company. Pursuant to the ad-interim order of attachment, the Officer of the Sheriff of Calcutta duly levied attachment on the goodwill

and tenancy of the debtor firm on 4 December 1965. The said attachment was alleged by the creditor to be valid and subsisting on the date of the

petition on 2 March 1966. Finally it is alleged that Bharat Tea Company and its partners failed and neglected to furnish the security and pay the

decretal dues.

8. The interim order of attachment will appear at page 13 of the paper book. The interim order of attachment is dated 2 December 1965. The final

order of attachment will appear at page 15 of the paper book. The final order of attachment is dated 18 January 1966.

9. It will appear from section 9 of the Presidency Towns Insolvency Act that a debtor commits an act of insolvency if any of his properties has

been sold or attached for a period of not less than twenty-one days in execution of the decree of any court for the payment of money. According

to the English law the act of bankruptcy must be a personal act and under English law no adjudication can be made against a firm in the firm name.

Under the Presidency Towns Insolvency Act it will appear from section 99 of the Act that any two or more persons being partners or any person

carrying on business under partnership name may take proceedings or be proceeded against under the Presidency Towns Insolvency Act in the

name of the firm. There is a proviso to section 99 that in that case the count may, on application by any person Interested, order the names of the

persons who are partners in the firm, or the name of the person carrying on business under a partnership name, to be disclosed in such manner and

verified on oath or otherwise, as the court may direct. In the present case there is an adjudication order against the firm. It was rightly contended

by counsel for the respondents that the adjudication order against the firm was effective against all the partners and all the partners were bound by

the adjudication order against the firm. In other words, it was said that the firm not having appealed against the order, the partners of the firm who

compromised with the firm could not impeach the adjudication order which has been made gains the firm.

10. The contention on behalf of the appellants was that the appellants did not appear, they did not consent and no warrant of attorney was filed on

behalf of them. Here again, certain facts are to be referred to. First, it will appear from the order at page 95 of the paper book that on the part of

the debtors an affidavit of Krishanlal Sawhney affirmed on 25 May 1966 and filed on 14 June 1966 was read. It will secondly appear from the

order that Sitaram Sawhney and Sri Ram Sawhney debtors numbered 3 and 4 waived service of the notice on 13 May 1966. It will thirdly appear

that Mr. Lahiri appeared for the debtors. The affidavit referred to in the order will appear at page 23 of the paper bock. Krishanlal Sawhney

describes himself as a partner of the debtor''s firm and brother of debtors numbered 3 and 4 and in paragraph 1 of the affidavit he states that he is

fully competent to affirm the affidavit on behalf of all the debtors. In the affidavit Krishanlal Sawhney stated in paragraph 4 that the hundis were

stolen and were filed by the petitioner by committing forgery. The deponent thereafter said that though no payment had been made by the

petitioner to the deponent the petitioner filed the suit. In paragraph 5 of the affidavit the deponent Krishanlal Sawhney stated that statements in

paragraphs 5, 6 and 7 of the petition were matters of record. Paragraphs 5, 6 and 7 of the petition referred to the institution of the suit, the

application of the defendants for leave to defend and the passing of the decree on 24 January 1964 for Rs. 30,058.06 ainst the debtors. In

paragraph 9 of the affidavit Krishanlal Sawhney submitted as follows: ""We honestly intend to repay the petitioner in full in suitable instalments failing

which your Lordship may be pleased to proceed with the adjudication proceeding against us.

11. The minutes of the court dated 13 May 1966 will show that Mr. Lahiri appeared for the debtors and that there was an extension of time to file

the affidavit-in-opposition and the judgment debtors who had defaulted to file the affidavit-in-opposition within the time previously granted were

directed to pay costs to the creditor assessed at 10 gold mohurs. The minutes further show that the creditor''s counsel was allowed to hand over

the notice previously sent under registered post with acknowledgment due and subsequently received back undelivered to the counsel for the

debtors-respondents and service on respondents Nos. 3 and 4 was waived. Reference may also be made to the letter dated 12 May 1966 written

by Mr. Private Kumar Mitter to B. R. Lodge. In that letter the solicitor wrote as follows : ""Please note that my counsel will mention the above

matter on behalf of all the respondents before court on the 13th May 1966 at 10-30 A.M. when please attend."" The matter mentioned was the

Insolvency Case No. 6 of 1966 and the subject-matter of the letter was the pending petition for adjudication and appointment of a Receiver.

These facts show that the appellants appeared and participated in the proceedings.

12. In the context of these facts counsel for the respondents contended that the grounds urged by the appellants that they did not appear, that they

were not served with notice of the petition and that the court did not make any finding with regard to the proof of debts and acts of insolvency

could not be agitated in this appeal. Counsel for the appellants contended that there was no warrant of attorney filed by the plants and therefore the

court would proceed on the basis that there was no appearance on behalf of the appellants. It was not disputed that there was a warrant filed on

behalf of the firm. The warrant that was filed on behalf of the firm was rightly contended by counsel for the respondents to be an appearance of all

the partners of the firm.

13. One of the preeminent questions in this appeal is whether the order is by consent of parties. Counsel for the appellants did not contend that the

order as it was drawn up showed that it was entirely by consent of parties. His contention was that the judgment showed that it was by consent

and that there could be no order of adjudication by consent. Counsel for the appellants relied on the decision reported in Inamati Mallappa

Basappa Vs. Desai Basavaraj Ayyappa and Others, in support of the contention that if an order was made by consent of parties it would be illegal

and bad. In the decision reported in (1935) 1 Ch. 353 the question arose as to whether before a petition of bankruptcy was presented by

moneylenders it was the duty of the Registrar before making and receiving the order to satisfy himself that all the requirements u/s 5(2) of

Bankruptcy Act, Rule 171 of the Bankruptcy Rules 1915 and section 10 of the Money Lenders'' Act, 1959 had been complied with. In the Oudh

case the question was whether the provisions contained in Order 23. Rule 3 of the CPC had any application to insolvency proceedings. In the

Oudh case there was no order either dismissing the petition or making an order of adjudication as required by section 27 of the Presidency Towns

Insolvency Act. In the decision in (1) Inamati Mallappa Basappa Vs. Desai Basavaraj Ayyappa and Others, . the question was whether the

provisions contained in Order 23 Rule 1 of the CPC were applicable to election petition and there could be a withdrawal of the election petition.

None of these decisions is of any aid to the appellants in the present case. There is no question of application of the provisions contained in Order

23 of the Code. In the English case the question was whether the rate of interest under the Money-Lenders'' Act was complied with. The finding of

the Registrar was not disturbed and there is an observation that apart from consent there should be other proof.

14. The question is whether there was any proof of debts. The creditor alleged the debt, alleged the suit and alleged the decree. The debtors did

not impeach the decree. The decree was not challenged. It appears from the minutes, the order as drawn up and the judgment that the court took

into consideration, the petition, affidavits and submission of parties. The submissions of the debtors were that they were willing to pay by

instilments. In that context counsel for the respondents relied on the decision (2) In re. A Debtor, reported in (1943) Ch. 210 where the debtor

had not given notice that he intended to dispute the petitioning creditors'' debt and he admitted it at the hearing of the petition it was held that it was

not necessary for the petitioning creditors at the hearing of the petition to prove the debt by production of the usunl affidavit but that it was

competent for the Registrar to make the receiving order subject to the filing on the same day of an affidavit proving the debt. In the present case

the affidavit evidence is that the creditor gave affidavit evidence of the debt and the debtors did not give any evidence to rebut the evidence

adduced by the creditors. On the contrary, the submissions made by the debtors were that the debts would be paid by instilments and those

statements amount to acceptance of the debt. Rule 81 of the Insolvency Rules in the present case indicates that on the appearance of the debtors

to show cause against the petitioning creditors'' debt, and the act of insolvency or such of those matters as the debtor shall have given notice that he

intends to dispute, shall be proved, and if any new evidence of those matters, or any of them, shall be given, or any witness or witnesses to such

matter shall not be present for cross-examination, and further time shall be desired to show cause, the court shall, if the application appears to the

court to be reasonable, grant such further time as the court may think fit. Thereafter Rule 81A states that the court shall in the absence of an

affidavit or oral evidence to the contrary presume the debt, mentioned in the creditors'' petition duly verified by affidavit as aforesaid, to be

subsisting at the date fixed for the hearing of such petition or at such other date or dates to which the hearing of such petition may be adjourned. It

therefore follows from the affidavit evidence, the order, minutes and the Rules under the Presidency Towns Insolvency Act that in the present case

the debt was not impeached and the debt was proved by the petitioning creditor.

15. Counsel for the appellants referred to various decisions in support of the contention that if the order and the minutes and the judgment all taken

together showed that there was consent as well as an order of the court it would be a composite order and therefore the appellants would have the

right to appeal against the composite order. Recourse was taken to the provisions contained in Or. 43, Rule 1 (m) of the CPC and reliance was

placed on the decisions reported in Kiran Singh and Others Vs. Chaman Paswan and Others, : AIR 1931 107 (Privy Council) : Jethmal Narandas

Vs. Mahadeo Anandji Dhoria, : Jagdish Narain Vs. Rasul Ahmad and Others, . In the decision in (3) Kiran Singh and Others Vs. Chaman Paswan

and Others, it is said that a decree passed by a court without jurisdiction was a nullity and that its invalidity could be set up at the stage of execution

and in collateral proceedings. The question as to whether a decree which is without jurisdiction can be challenged in collateral proceedings or at

any stage of execution is entirely different to the question as to whether a decree which is impeached on the ground of lack of jurisdiction can be so

done in a appeal from an order which is said to be by consent or an order of court accompanied by consent of parties. In the decision in (4) Paban

Sardar v. Bhupendra Nath Nag, reported in AIR 1917 Cal. 607, it is said that a decree under Order 23. Rule 3 of the Code would be said to be

passed only after there had been an order that the compromise be recorded and if a consent decree be passed without such order the party had

the right to appeal. There was a compromise. The court did not record the compromise but passed a decree. It therefore followed that if it would

be recording or refusing to record a compromise it would be appeal able under the provisions contained in section 43, rule I, clause (m) of the

Code. The decision in (5) AIR 1931 107 (Privy Council) was that where a decree or any part of a decree, was passed by consent of parties, it

should always so appear on the face of the decree when drawn up. In that case there was some controversy as to whether the decree and the

judgment were in consonance or in conflict. The decree did not mention consent but the judgment did. Therefore the Judicial Committee sent the

case on remand to find out whether it was a judgment and decree by consent. In the decision in (6) AIR 1932 251 (Privy Council) when the same

case came back from remand it appeared that the judgment and decree being upon the consent of the parties the court could not go into the

question of sufficiency or otherwise of the consent.

16. The decisions on which counsel for the appellants relied are on the question as to whether a compromise which is either recorded or refused to

be recorded is appeal able. The CPC confers the right of appeal. There is a reason for that. In proceedings under Order 23, Rule 1 of the CPC

the court adjudicates upon what has come before the court by consent of parties. The adjudication by the court is not a consent order. When

parties say that by consent there should be a compromise, it is a different proposition altogether when the court records or refuses to record the

compromise.

17. In the present case it is established that of the debtors, the firm appeared and has not appealed against the adjudication order. Counsel for the

appellants made a distinction between appearance of the partners and appearance of the firm by contending that the provisions contained in Order

30, Rule 6 of the Code related to appearance of partners. In the present case there is warrant filed on behalf of the firm. There is appearance of

the firm. The firm represents all the partners. The partners appeared through the firm. Furthermore, it appears from the minutes that the debtors

including the appellants appeared and they waived service. It also appears that the debtors by the affidavit lied submitted that they wanted time to

pay. As far as the firm and the appearing debtors are concerned the order as drawn up, the minutes, the judgment all show that the entire order

was passed on the submission of the parties to an order and the parties gave their consent and the court heard the parties and their submissions as

well as their consent to the order proposed to be passed and in that context the court passed the order. There is an element of consent in the order

and there is also the element that the court took into consideration the submissions of the parties as well as their consent to submit to the order. In

that context the question of consent is of importance from two points of view; first if there is consent is it open to the appellants to appeal and

secondly if there is consent is it competent to the appellants to impeach and challenge the consent as it appears from the materials on record.

18. With regard to the first point that if there is consent it is not open to the appellants to impeach that consent and contend to the contrary.

Counsel for the respondents submitted that the question really rested on what is described as equitable estoppels and the principle that a party who

has consented to an order is stopped from challenging the same. Counsel for the appellants relied on the recent decisions in (7) Pulavarthi Venkata

Subba Rao and Others Vs. Valluri Jagannadha Rao and Others, , in support of the contention that a compromise decree is not a decision by the

court and it is the acceptance by the flict. The decree did not mention consent but the judgment did. Therefore the Judicial Committee sent the case

on remand to find out whether it was a judgment and decree by consent. In the decision in (6) AIR 1932 251 (Privy Council) when the same case

came back from remand it appeared that the judgment and decree being upon the consent of the parties the court could not go into the question of

sufficiency or otherwise of the consent.

19. The decisions on which counsel for the appellants relied are on the question as to whether a compromise which is either recorded or refused to

be recorded is appeal able. The CPC confers the right of appeal. There is a reason for that. In proceedings under Order 23, Rule 1 of the CPC

the court adjudicates upon what has come before the court by consent of parties. The adjudication by the court is not a consent order. When

parties say that by consent there should be a compromise, it is a different proposition altogether when the court records or refuses to record the

compromise.

20. In the present case it is established that of the debtors, the firm appeared and has not appealed against the adjudication order. Counsel for the

appellants made a distinction between appearance of challenged by way of appeal more especially if the party appealing has taken advantage of

the order. In the present case counsel for the respondents not only raised the bar of consent against the appellants but also rightly contended that

the debtors including the appellants had taken advantage of the order by having submitted to the court to give time to the debtors to pay by

installments and therefore it was no longer open to them to impeach the order. Counsel for the respondents also rightly relied on the Bench

decision in (13) re. Bahirdas Chakravarti and others v. Nobin Chandra Pal and another, reported in 6 CWN 121 in support of the proposition that

where the parties among themselves came to an agreement and in accordance with that agreement the court proceeded to make an order the

parties by representation and an undertaking procured the order and were therefore stopped from acting contrary to deliberate representation and

undertaking. This proposition means in essence that a party who invites the court to pass an order cannot thereafter turn round to attack the order.

A classic illustration of this principle is to be found in the decision in (14) re. Ex part Pratt, reported in 12 QBD 334 where on the hearing of a

bankruptcy petition, the debtor appeared and did not raise the objection to the proof of the bankruptcy petition and the receiving order was made,

he was thereafter not allowed on an appeal from that order to raise the objection that the debt had not been proved. It should be stated here that in

the present case as far as the proof of debt is concerned I am of opinion that the debt and the acts of insolvency were proved.

21. Counsel for the appellants relied on the decision reported in ILR 31 Cal. 357: AIR 1937 Mad. 239: Jethmal Narandas Vs. Mahadeo Anandji

Dhoria, in support of the proposition that authority of a person to consent and want of power of a pleader to settle could be gone into by court on

appeal from the order or decree. In the decision in (15) re. Monmohini Guha v. Bagla Charan Das, reported in ILR 31 Cal. 357 the question

arose as to whether an agreement or a compromise as regards genuineness and execution of a will as lawful. It was said that any party to a suit had

the right to repudiate the action of an agent compromising the suit without his knowledge and consent. In that case one of the signatories denied

authority in the trial court. The trial court did not investigate that matter. Therefore it was not a consent order. In the decision in (16) re. Nandamani

Anangabhima and another v. Modono Mohono Deo, reported in AIR 1937 Mad. 239 a pleader purported to do something which he had no

power or capacity to do. An application for execution was presented by the pleader without any authority in his favour. It was not a question of

defect in the pleader''s authority nor it was a question of an irregularity nor of an illegality. It was merely a question of want of power. This decision

is of no aid to the appellants because the authority that was impeached in the Madras case was in the application itself.

22. In the present case the question is whether after there has been submission of the parties to the order it is open to the appellants to question the

consent in the manner it has been agitated in the present case. If the judgment and order contained reference of consent the question for

consideration is whether the appellate court will or will not go into the question the partners and appearance of the firm by contending that the

provisions contained in Order 30, Rule 6 of the Code related to appearance of partners. In the present case there is warrant filed on behalf of the

firm. There is appearance of the firm. The firm represents all the partners. The partners appeared through the firm. Furthermore, it appears from

the minutes that the debtors including the appellants appeared and they waived service. It also appears that the debtors by the affidavit lied

submitted that they wanted time to pay. As far as the firm and the appearing debtors are concerned the order as drawn up, the minutes, the

judgment all show that the entire order was passed on the submission of the parties to an order and the parties gave their consent and the court

heard the parties and their submissions as well as their consent to the order proposed to be passed and in that context the court passed the order.

There is an element of consent in the order and there is also the element that the court took into consideration the submissions of the parties as well

as their consent to submit to the order. In that context the question of consent is of importance from two points of view; first if there is consent is it

open to the appellants to appeal and secondly if there is consent is it competent to the appellants to impeach and challenge the consent as it

appears from the materials on record.

23. With regard to the first point that if there is consent it is not open to the appellants to impeach that consent and contend to the contrary.

Counsel for the respondents submitted that the question really rested on what is described as equitable estopped and the principle that a party who

has consented to an order is estopped from challenging the same. Counsel for the appellants relied on the recent decisions in (7) Pulavarthi

Venkata Subba Rao and Others Vs. Valluri Jagannadha Rao and Others, , in support of the contention that a compromise decree is not a decision

by the court and it is the acceptance by the where there was consent. It may be open to the parties to imp peach or attack the consent by a suit or

other collateral proceeding but that is entirely a different aspect. What was rightly contended by counsel for the respondents was that if the

appellants'' grievances were that they did not consent or that they did not authorise the firm or Krishanlal Sawhney or their lawyers to consent,

there should have been either an application for review or other collateral proceedings to canvass that question before the trial court. The reasons

are first that if the order refers to consent of parties it is not within the scope of the appeal whether there was consent or not because that itself is a

dispute which is not within the scope of the appeal. Secondly, if that issue is raised as to whether there was a consent or not it will require evidence

and investigation of facts, raising of issues which were not before the trial court in the matter appealed from and therefore it would not be open to

the appellants to have a right of attack to a consent order. Thirdly, the appellants might have had an application for review or might have had other

proceedings but under no circumstances it would be open to the appellants to canvass this question in this appeal because this very dispute as to

whether there was consent or not was not before the trial court.

24. Reference may be made to the Bench decision in 5 CWN 877 : ILR 10 Cal. 612 : ILR 30 Cal. 613, in support of these reasons. In the

decision in (17) re. Biraj Mohini Dasi v. Sm. Chinlamoni Dasi reported in 5 CWN 877 it was said that the decree was passed by consent of

parties. The question as to whether of not the compromise decree was valid could not be gone into on an appeal against that decree. After the final

decree was made the defendants applied for a review and that application was dismissed. The defendants thereafter appealed against the

preliminary as well as the final decrees in the partition suit. The compromise that was sanctioned by the court was on behalf of some minors and a

decree was made in terms of that compromise. It was said by Maclean, C.J. ""They cannot, upon the present appeal, go into the question of

whether or not the consent decree is or is not binding upon the parties, that is a new and entirely distinct case raising new and distinct issues of fact,

and may be of law, and which must be determined in a fresh and distinct proceeding. The appellants must get rid of that consent decree, they must

have it set aside, if a proper case for setting it aside be made out; they cannot affect this object by appealing against it."" Counsel for the appellants

distinguished this decision by relying on the observation of Banerjee, J., in the same case that in so far as the appeal sought to show that there was

no valid compromise to support the decree, it might be conceded that an appeal for that limited purpose might lie as a matter of law against a

decree passed on compromise and contended that in the present case the order of adjudication was by consent and therefore it could not be

sustained. Banerjee, J., in Biraj Mohini Dasi''s case, (5 CWN 877), referred to the case of (18) Brojo Durlav Singh v. Roma Nath Ghose, (1

CWN 597) in support of the observation. In Brojo Durlav''s case, (supra), a compromise was made and the agreement was recorded u/s 375 of

the Code of 1882. In other words there was recording of compromise. The legality of that compromise could be attacked in an appeal. That is a

different matter. In my opinion the order in the present case read in the light of the judgment and the minutes of the court and the affidavits shows

that it was an order of the court accompanied by consent and submission to the order by the parties. Therefore it is not open to the appellants to

contend that the order can be attacked on a question of law.

25. In the other Bench decision in (19) re. Aushootosh Chandra and another v. Tara Prasanna Roy, reported in ILR 10 Cal. 612, it was said that

for the purpose of setting aside a decree passed in pursuance of a compromise there are two available modes of procedure - first by suit and

secondly by review of the judgment sought to be set aside. The application for review was said to be preferable to a suit. In another Bench

decision in (20) re. Rakhalmoni Dassi v. Adwyta Prosad Roy, reported in ILR 30 Cal. 613, a compromise under a decree based upon it was

sought to be set aside on the ground that a compromise was entered into by the guardian of a minor without the leave of the court having been

granted and it was said that the proper course to set aside such a decree would be by way of an application for review but not by an appeal from

the compromise decree. It was said that an appellate court could determine the appeal only upon the materials before it on record. In the present

case the question is whether the order is entirely by consent or not. I have already expressed the view that it is not entirely a consent order, but it is

an order of court which is accompanied by the consent of parties and submissions of parties to an order made by the court in the facts and

circumstances of the case and on the basis of sub missions made orally and on affidavits. Therefore the consent aspect cannot be impeached on

appeal in the present case because first it is not entirely an order by consent, secondly, the consent cannot be challenged on the record for reasons

indicated earlier.

26. Counsel for the appellants relied on the Bench decision in (21) Abinash Chandra Bidyanidhi Bhattacharjee Vs. Dasarath Malo and Others, and

contended that where some people appealed and others did not the court was sometimes put in a position having to make impossible or

contradictory or unworkable orders and accordingly the court has been given power to make a decree in favour of persons who have not even

approached the court. In other words, it was contended that the provisions contained in Order 41, Rule 33 might be attracted by the appellants in

the present case by contending that though the firm and other partners had not preferred an appeal against the order the appellants wanted relief

and such relief could be given even though the other parties had not preferred an appeal. Counsel for the respondent on the other hand relied on

the Bench decision in (22) Amulyadhan Sinha Vs. Kanak Chandra Mustafi and Others, , in support of the contention that where some of the

defendants filed petitions of compromise whereby they gave up their interest in the suit property in favour of the plaintiff the Appellate Court would

not be justified in setting aside the decree in to against the non-contesting and non-appealing, defendants. In the present case it was said on behalf

of the appellants that the court should hold that the appellants did not appear and therefore the order should be pronounced to be bad though the

firm had not appealed. I have already expressed the opinion that the appellants appeared. The conduct of the appellants in the proceedings before

the trial court repels any case of non-appearance. Further such totally conflicting position is indefeasible in the facts and circumstances.

27. It was contended by counsel for the appellants that as far as the appellants are concerned no warrant was filed. The minutes indicate that the

appellants appeared through lawyers. The solicitor''s letter indicates that the solicitor acted for the appellants. The warrant field on behalf of the

firm is an appearance of all the partners. It was said by counsel for the appellants that want of power of pleader to consent would be a

consideration in ascertaining whether there was consent or not. Counsel for the respondents, on the other hand, rightly contended that the filing of

warrant of the firm would be appearance of each of the partners. Counsel for the respondents rightly relied on the decision in (23) Purushottam

Umedbhai and Co. Vs. Manilal and Sons, . At page 330 of the report there is an observation of the Supreme Court that the power of attorney in

that case was signed only by Manubhai Maganbhai Amin himself and not for the firm and though the power was not signed by all the partners of

the firm Manilal and Sons but only by Manubhai Maganbhai Amin, it was not necessary that the power should have been signed by all the partners

of the firm because Manubhai Maganbhai Amin was the Manager of the firm. The Supreme Court said that u/s 18 of the Act a partner is an agent

of the firm for the purposes of the business of the firm and Manubhai Maganbhai Amin was the agent of the firm as well as its Manager. The

Supreme Court also observed that in clauses (a) to (h) of section 19 of the Partnership Act, there was no prohibition against a partner executing a

power of attorney in favour of an individual authorising him to institute a suit on behalf of the firm. Counsel for the respondents also relied on the

decision in (24) Machireddi Narappa Vs. Proddatur Subbarayadu and Others, in support of the proposition that presentation of an execution

petition by a vakil who has no vakalatnama from the decree-holder is a mere irregularity. The application in that case was filed within the period of

12 years and the subsequent filing of the vakalatnama after the period of 12 years was held to cure the formal defect The decision in (16)

Nandamani Anangabhima & ors. v. Modono Mohono Deo reported in AIR 1937 Mad. 239 on which counsel for the appellants relied was a case

where the pleader had not been appointed and it was not a question of defect in authority. In the present ease as I have already indicated the

appellants appeared and made their submissions and the absence of a warrant of attorney on behalf of the appellant does not have the effect of

showing that there was either no appearance or no authority to the lawyers to appear. The intrinsic evidence in the minutes and in the solicitor''s

letter repels the contentions of the appellants.

28. It was contended by counsel for the appellants that the order as drawn up did not show that there was an act of insolvency and therefore, the

order violated the provisions contained in sections 9, 10, 12, 13, 51 and 52 of the Presidency Towns Insolvency Act and Rules 74-80, 94(1) and

(2) and Form No. 10. It was also contended on behalf of the appellants that the order was therefore made without jurisdiction. Counsel on behalf

of the respondents on the other hand, contended that the order was not without jurisdiction and the statutory provisions were complied with. In my

opinion if the court had jurisdiction to make an adjudication order and if the respondents did not contest and dispute the debt and the acts of

insolvency, the court was not called upon to go into the question any further and the statutory conditions were all fulfilled as will appear from the

order, the minutes and the judgment. The order in the present case is that the debtors were to pay certain sums of money month by month and if

the debtors made any default in payment of money an order in terms of prayer (i) -in the application would be deemed to have been made on the

day of such default and in that event the debtors would also be liable to pay costs of the application. Form No. 10 on which reliance was placed

by counsel for the appellants shows inter alia that it appeared to the court that the act or acts of insolvency has or have been committed and an

adjudication order is made against the person named in the order. It appears in the Form that the nature and date or dates of the act or acts of

insolvency on which the order was made are to be set out. It was therefore said that the acts of insolvency were not set out and it could not be said

as to from which date there was insolvency. It will appear from Rule 94 following in Presidency Towns Insolvency Rules that an order of

adjudication shall be made in one of the Forms Nos. 9 and 10 in the Appendix, with such variations as cir cumstances may require. Rule 96 states

that a copy of every adjudication order, and order for the appointment of the Official Assignee as interim Receiver of the debtor''s property, sealed

with the seal of the Court, shall forthwith be sent by the Registrar of this court to the Official Assignee. Rule 97 states that that the Official Assignee

shall cause a copy of the adjudication order sealed with the seal of the Court, to be served on the debtor. Rule 99 states that when an adjudication

order is made, the Official Assignee shall forthwith send notice thereof to the official gazette, and to such newspapers as the court may direct or in

default of such direction as he may think fit. The notice shall be in Form No. 11 in the Appendix, with such variations as circumstances may

require. Form No. 11 is that on a certain day an order was made by the High Court in its Insolvency Jurisdiction adjudging the person named

therein as an insolvent. It therefore follows that after the Gazette Notification there is the publication in the Gazette of the adjudication and the date

from which adjudication speaks.

29. In the case of (25) Exparte Learoyd In re. Foulds reported in (1878) 10 Ch. 3 a question arose that the Notification in the Gazette did not

state the act of insolvency. The Notification of the adjudication order in Ex Parte Learoyd, (supra), did not set forth the act of bankruptcy and a

point was made of it in the argument of Counsel but no notice was taken of it in any of the judgments. It was also stated that even if the acts of

insolvency were stated in the Notification, the Notification would only have been evidence that act of insolvency mentioned in it was committed and

not conclusive evidence thereof. It was also held that the adjudication Presidency Towns Insolvency Act and Rules 74-80, 94(1) and (2) and

Form No. 10. It was also contended on behalf of the appellants that the order was therefore made without jurisdiction. Counsel on behalf of the

respondents on the other hand, contended that the order was not without jurisdiction and the statutory provisions were complied with. In my