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After Judgment.-Where a deed of compromise was filed after judgment had been written and signed, but not delivered, it was held that that the Court was bound to pass a decree in accordance with it.-Raj Narain Deb Chowdhry vs. Kadir Mohamed, 1 Shome, 112.
How Carried out.-When a suit is compromised, the compromise ought to be carried out by proper deeds, and filed in Court, especially where infants are concerned, so as to have the assent of the Court at the time-Abdool Ali vs. Mozuffer Hossein Chowdhry, 16 W. R. (P. C.), 22. The Court will then pass a decree so far as it relates to the suit, and such decree will be final, and must be set aside before any suit can be brought on the original cause of action. Even a compromise out of Court must be considered as superseding all former rights of suit, and to establish the deed of compromise as the only basis of right for the future-Ameer Begum vs. Noor Begum, 1 Agra, F. B., 1; Bishnu Coomar vs. Joy Hurish, 2 W. R., 209. Once entered in the decree, the remedy is by execution, and not by a new suit-Luckhee Narain Roy vs. Ram Mohun Doss, 13 W. R., 151 ; Gopi Mohun Dass vs. Tincouri Gupta, 1 C. L. R., 254. But the decree must be accordance with the compromise-Muleeka vs. Jumeele, L. R., Ind. App., Sup. Vol., 144.
A consent decree upon a compromise will not be granted unless the suit be entered in the cause list of the Court-Pell vs. Valetta, 5 C. L. R., 464.
Whole or any Part.-Where the compromise, is single, and embodies a new contract much wider in its scope than the adjustment of the claim in suit, the Judge is not bound to enforce it under this section-Fajalah Ali vs. Ramaruddin, I. L. R., 13 Cal., 170. See, however, the case of Appasami vs. Manikram, I. L. R., 9 Mad., 103.
Against Parties not Joining. -Where a consent decree is sought to be enforced against persons on the record, but not parties to the compromise, the dispute falls within the scope of section 244, ante-Sankara Vadivammal vs. Kumarasamya, I. L. R., 8 Mad., 473.
Against 'One Co-contractor.-A judgment signed by consent against one co-contractor is a bar to any subsequent suit against the other co-contractors, even if it has been set aside by consent of the defendant-Hammond vs. Schofield, 1 Q. B. (1891), 453.
Who Can Compromise.-- Pleaders, unless especially empowered so to do, cannot compromise cases conducted by them-Mussamut Sirdar Begum vs. Mussamut Irrutool Nissa, 2 Alla., 149 ; nor can a guardian compromise on behalf of a minor unless the compromise be bound to be for the minor's benefit-Roshun Jehan vs. Syed Enaet Hossein, W. R., 1861, p. 83; see also Bibee Solomon vs. Abdul Azeez, I. L. R., 6 Cal., 687.
As to how far a compromise entered into by a Hindu widow binds the reversioners, see Imrit Konwar vs. Roopnarain Singh, 6 C. L. R., 81 ; Sheo Narain Sing vs. Khurgo Koery, 10 C. L. R., 336.
A Corporation can compromise a suit-In re Providence Insurance Society, 8 C. D., 334.
An agreement to take an oath by the parties to a suit has been held not an adjustment within this section---Connopalen Uthatchadayan Haje vs. Perotta Meloden Ramen Nambiar, 4 Mad., 422 ; Vasudeva vs. Naraina, I. L. R., 2 Mad., 356. See now Act X. of 1873, sections 8, 9, 10; Muhammad vs. Cheda, I. L. R., 14 Alla., 141.
Limitation.-As to when a person withdrawing can obtain the benefit of section 14 of the Limitation Act, see Narasimma vs. Muttayan, I. L. R., 13 Mad., 451.
Decree How Set Aside. A compromise can only be set aside on the ground of fraud in a regular suit-Gilbert vs. Endean, 9 C. D., 259, 266 ; Sheo Gollam Lall vs. Bani Prosad, I. L. R., 5 Cal., 27; or by review of judgment-Aushootosh Chunder vs. Tara Prasanna, I. L. R., 10 Cal., 612.
Interpretation of Compromise.-Chowdhry Chintamun vs. Mussamut Nowlucko, 2 Ind. App., 273. It must be such an agreement as a Court can pass a decree upon and there is nothing more to be done-Muhammad vs. Cheda, I. L. R., 14 Alla., 141.
375A. Nothing in this Chapter shall Applications for execution of decrees not apply to any application or other proceed. affected.
ing in any suit subsequent to the decree. Explanation.—An application to the Appellate Court pending an appeal is not an application subsequent to the decree appealed from within the meaning of this section.
Section 2, Act VI of 1892.
OF PAYMENT INTO COURT.
376. The defendant in any suit to recover a debt or Deposit by defendant damages may, at any stage of the suit, deof amount in satisfaction posit in Court such sum of money as he of claim.
considers a satisfaction in full of the claim. This section applies to H. C. and P. S. C. C.
In regard to denying the plaintiff's cause of action and pleading payment into Court, see Børdan vs. Greenwood, 3 Ex. D., 251.
As to when a Court will, in a suit for account, direct payment into Court, see The London Syndicate vs. Lord, 8 C. D., 84.
Payment into Court.-As to what amounts to such a payment, see Gujudhur Paura vs. Naik, I. L. R., 8 Cal., 528 ; Srinivasa vs. Malayacha, I. L. R., 7 Mad., 211. 377. Notice in writing of the deposit shall be given
through the Court by the defendant to the Notice of deposit.
plaintiff, and the amount of the deposit shall (unless the Court otherwise directs, be paid to the plaintiff on his application.
This section applies to H. C. and P. S. C. C.
See section 36, ante. It would appear as if the money should be paid to the plaintiff's agent or pleader unless the Court required his attendance in person.
Otherwise Direct.-When there are conflicting claims an order under this section is necessary-Haji Abdul vs. Noor, I. L. R., 16 Bom., 141.
378. No interest shall be allowed to the plaintiff on Interest on deposit any sum deposited by the defendant from not allowed to plaintiff the date of the receipt of such notice, after notice.
whether the sum deposited be in full of the claim or fall short therefore.
This section applies to H. C. and P. S. C. C.
The general rule, apart from this section, is, that a creditor is not bound to accept a sum tendered to him which is less than what is due to him. He is entitled to require payment of the principal and interest in full, and his refusal to receive part of what is due to him will deprive him of his right to interest-Kunya Singh vs. Tooydun Singh, 7 W. R., 20; Watson & Co. vs. Dhonendra Chunder, I. L. R., 3 Cal., 6, p. 16. This rule has not been fully followed out in our Courts, and judgment-debtors have been allowed the benefit of their deposits in the way of giving interest on the sum deposited-Poreshnath Mukerjee vs. Kristo Mohun, 12 W. R., 50, from the date of notice--Kali Dass Ghose vs. Puran Roomaree Bibee, 16 W. R., 304 ; but whether this section governs cases in which the tender is made direct to the creditor is doubtful, see Chunder Kant vs. Jodoo Nath, 1 C. L. R., 470; I. L. R., 3 Cal., 468. 379. If the plaintiff accept such amount only as sat
isfaction in part of his claim, he may proProcedure where plaintiff accepts depo
secute his suit for the balance ; and if the sit as satisfaction in
Court decides that the deposit by the part.
defendant was a full satisfaction of the plaintiff's claim, the plaintiff must pay the costs of the suit in curred after the deposit and the costs incurred previous thereto, so far as they were caused by excess in the plaintiff's claim.
If the plaintiff accept such amount as satisfaction in full Procedure where he
of his claim, he shall present to the Court accepts it as satisfaction a statement to that effect, and such statein full.
ment shall be filed and the Court shall pass judgment accordingly, and, in directing by whom the costs of each party are to be paid, the Court shall consider which of the parties is most to blame for the litigation.
Illustrations. (a) A owes B Rs. 100. B sues A for the amount, having made no demand for payment and having no reason to believe that the delay caused by making a demand would place him at a disadvantage. On the plaint being filed, A pays the money into Court. B accepts it in full satisfaction of his claim, but the Court should not allow him any costs, the litigation being presumably groundless on his part.
(6) B sues A under the circumstances mentioned in Illustration (a). On the plaints being filed, A disputes the claim. Afterwards A pays the money into Court. B accepts it in full satisfaction of his claim. The Court should also give B his costs of suit, A's conduct having shewn that the litigation was necessary.
(c) A owes B Rs. 100 and is willing to pay him that sum without suit. B claims Rs. 150, and sues A for that amount. On the plaint being filed, A pays Rs. 100 into Court and disputes only his liability to pay the remaining Rs. 50. B accepts the Rs. 100 in full satisfaction of his claim. The Court should order him to pay A's costs.
This section applies to H. C. and P. S. C. C.
In an action to recover Rs. 25,378, defendants tendered Rs. 14,619, and on settlement of issues paid in by leave of the Court Rs. 17,645, which the plaintitf accepted : Held, plaintiff was entitled to his costs down to the settlement of issues - Ardesir Limje vs. Sorabji, 1 Boin., 70.
from plaintiff at any stage of suit.
CHAPTER XXIV. OF REQUIRING SECURITY FOR Costs. 380. If at the institution or at any subsequent stage
of a suit, it appears to the Court that a sole eosts may be required plaintiff is, or (when there are more plain
tiffs than one) that all the plaintiffs are,
residing out of British India, and that such plaintiff does not, or that no one of such plaintiffs does, possess any sufficient immoveable property within British India independent of the property in suit, the Court may, either of its own motion or on the application of any defendant, order the plaintiff or plaintiffs, within a time to be fixed by the order, to give security for the payment of all costs incurred and likely to be incurred by any defendant.
On the application of any defendant in a suit for money in which the plaintiff is a woman the Court may, at any stage of the suit, make a like order if it is satisfied that such plaintiff does not possess any sufficient immoveable
property within British India independent of the property in suit.
Act VIII:of 1859, sections 34, 35. This section applies to H. C. and P. S. C. C. The last paragraph has been inserted by Act VII of 1888, section 5.
As to security on staying execution, see sections 545—7, and 608, post; and as to security for costs where an appeal has been filed, see section 549, post.
Suit for Money.-- A suit for possession of ornaments and other things or in the alternative their value is within the section-Degumbari vs. Aushootosh, 1. L. R., 17 Cal., 610.
British India.-The Cantonment of Wadhwan in Kathiawar is within British India-Triccam vs. Bombay Railway, I. L. R., 9 Bom., 244. See section 382, post.
The mere presence in British territory at the time of suit will not get rid of the liability to give security, and in one case a residence of four months, with a statement that the residence was intended to be permanent, was considered insufficient-Mahomed Shuffi vs. Laldin, I. L. R., 3 Bom., 227 ; compare Gosvami vs. Govardhanlalji, I. L. R., 14 Bom., 541.
Foreign Territory. The inhabitant of a foreign territory, such as Hill Tipperah, must give security, even though the defendant is also a resident, in foreign territoryKoroona Moyee vs. Ooma Churn, 12 W. R., 465; or if he is plaintiff as a relator, suing to enforce a public right-Cazee Muzhur Hossein vs. Denobundoo, Bourke, 40; but a plaintiff residing in British territory, though in another province, is not so bound-Gahan vs. Orden, Coryt., 11.
Practice.--The law apparently does not require the personal attendance of the sureties in Court, though such attendance is customary; see Rajah Man Singh vs. Jalaloodeen, S. D., N. W., 1854, 358. If security has been furnished, fresh security will not be demanded, unless it is shown that the sureties are in nowise subject to, and have no property within, jurisdiction-Gibson vs. Chisholm, Fulton, 480.
Where an appellant in bankruptcy failed to give security for costs, and the respondent, without previously writing to appellant's solicitors, gave notice of motion to dismiss the appeal, and subsequently the security was given, it was held that the appellant was liable for the costs of the motion-Ex-parte Isaacs, 10 C. D.; and see In re Cartapara Mining Company, 19 C. D., 457. As to the case of a trustee in bankruptcy, see Pooley's Trustee vs. Whetham, 28 C. D., 42.
If plaintiff is suing for another, and is not the real litigant, he can be called on to give security for costs-Khajah Assennoollajoo vs. Solomon, I. L. R., 14 Cal., 533 ; Gobind Dass vs. Ramsahay Jemadar, Fulton, 157.
The heirs of the Hindu testator suing the trustees of a religious trust created by the testator, but in which the heirs have no interest, should give security for costs—Brojomohun Dass vs. Hurrololl Dass, 6 C. L, R., 58.
For the proper mode of proceeding on a security bond, see Poynor Bibee vs. Nujjoo, I. L. R., 5 Cal., 437.
Effect of failure to
381. In the event of such security not being furnished
within the time so fixed, the Court shall furnish security. dismiss the suit unless the plaintiff or plaintiffs be permitted to withdraw therefrom under the provisions of section 373, or show good cause why such time sḥould be extended, in which case the Court may extend it.
Where a suit is dismissed under this section, the plaintiff may apply for an order to set the dismissal aside, and, 'if it is proved to the satisfaction of the Court that he was prevented by any sufficient cause from furnishing the security within the time allowed, the Court shall set aside the dismissal upon such terms as tosecurity, costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit,
The dismissal shall not be set aside unless the plaintiff has served the defendant with notice in writing of his application.
The provisions of the Indian Limitation Act, 1877, with respect to an application under section 103, and of this Code with respect to an appeal from an order rejecting such an application, shall apply, so far as they can be made applicable, to an application under this section for an order to set aside the dismissal of the suit, and to an appeal from an order rejecting such an application, respectively.
Act VIII of 1859, section 35. This section applies to H. C. and P. S. C. C. This section except up to " section 373" of the first paragraph has been inserted by Act VII of 1888, section 33.
Before dismissing a suit under this section, the Court should see that notice of the order requiring security has been served on the appellant or his pleader-Timmu vs. Deva Rai, I. L. R., 5 Mad., 265.
The Time so Fixed.-The time may now be extended, see also the following cases -In re Soorj Mukhi, I. L. R., 2 Cal., 272; Burjore vs. Bhagana, I. L. R., 10 Cal., 557.
A person whose suit has been dismissed under this section, may, if defendant in a subsequent suit, rely on the same matter put forward in the previous suit. Quære : Could he do so if he were plaintiff in the subsequent suit ?- Rungrav vs. Sidhi Mahomed, I. L, R., 6 Bom., 482. See section 103, ante.
Appeal.--An order dismissing a suit under this section is a decree and open to appeal- Williams vs. Brown, I. L. R., 8 Alla., 108.
382. Whoever leaves British India under such circumResidence out of Bri
stances as to afford reasonable probability tish India.
that he will not be forthcomming whenever he may be called upon to pay costs shall be deemed to be residing out of British India within the meaning of section 380.
This section applies to H. C. and P. S. C. C.
When a plaintiff leaves British India before the case is decided, the defendant should apply to the Court under this section to take security for costs-In re Calcutta and South-Eastern Railway Company, 8 W. R., 217 ; and then, unless there is a reasonable probability that he will be forthcoming whenever he may be called on to pay costs, or, that he has sufficient immoveable property in British India to meet them, he must give security.
As to security in appeals, see section 549, post.
OF COMMISSIONS. A.-Commissions to Examine Witnesses. 383. Any Court may in any suit issue a commission
for the examination on interrogatories or Cases in which Court may issue commission otherwise of persons resident within the to examine witness.
local limits of its jurisdiction, who are exempted under this Code from attending the Court, or who are from sickness or infirmity unable to attend it.
Act VIII of 1859, section 175. This section applies to H. C. and P. S. C. C.
Discretion.—The Court has a discretion to grant or refuse a commission, and the question is whether a sufficient case has been made out-Burney vs. Eyre, 1 Hyde, 68; but it is not a fair exercise offthat discretion to refuse, because the Judge does not exactly