Lawyers owe fiduciary duties to their clients and must follow the client's instructions rather than substitute their judgment. A lawyer must be specifically authorized to settle and compromise a claim.

JUDGMENT :

Dr. Akshaya Kumar Rath, J - By this petition under Article 227 of the Constitution of India, the petitioner seeks to quash the order dated 24.2.2005 passed by the learned Addl. District Judge, Fast Track, Aska in FAO No. 8 of 2004 dismissing the same and thereby confirming the order dated 28.7.2001 passed by the learned Civil Judge (Senior Division), Aska in MJC No. 14 of 1997 whereby and whereunder the application filed by the petitioner to review the order dated 4.2.1997 passed in Execution Proceeding No. 16 of 1989 was rejected.

2. The short facts of the case are that the petitioner as plaintiff filed a suit being T.S. No. 34 of 1987 for a declaration of right, title and interest and recovery of possession of suit schedule land in the court of learned Subordinate Judge, Aska (now designated as Civil Judge (Senior Division), Aska). The suit was decreed on 6.1.1989. Thereafter, he filed Execution Case No. 16 of 1989 for execution of the decree. The case was posted to 4.2.1997. The advocate for the petitioner filed a memo stating therein that the decree-holder did not want to press the execution proceeding. On the basis of the said memo, executing court closed the execution proceeding.

3. While the matter stood thus, on 18.2.1997 a petition was filed under Order 21 Rule 106 CPC by the petitioner-decree-holder to set aside the order dated 4.2.1997 and to restore the case to file on the ground that he had not instructed his advocate not to press the execution proceeding, nor any compromise was effected between the parties. The said petition was registered as MJC No. 14 of 1997. During pendency of the said case, the petitioner filed a petition on 16.3.2001 to amend the original petition to convert the same to a petition under Order 47 Rule 1 CPC read with Section 151 CPC. The same was allowed by the learned court below. The opposite party filed a counter to the said petition contending, inter alia, that the compromise entered into between the parties out of court for which the advocate for the petitioner filed a compromise petition on 4.2.1997. By order dated 28.7.2001, the learned Executing Court dismissed the petition and dropped the execution case. The petitioner had unsuccessfully challenged the same before the learned Addl. District Judge, Fast Track, Aska in FAO No. 8 of 2004. The same was eventually dismissed on 24.2.2005.

4. Heard Mrs. Sujata Jena, learned counsel for the petitioner. None appears for the opposite party in spite of valid service of notice.

5. The seminal point that hinges for consideration of this Court is as to whether the learned Civil Judge (Senior Division), Aska was justified in closing Execution Proceeding No. 16 of 1989 on the basis of a memo filed by the learned counsel for the decree-holder, when the decree-holder had not authorised the learned counsel to do so?

6. The subject-matter of dispute is no more res integra. An identical matter came up for consideration before the apex Court in the case of Himalayan Cooperative Group Housing Society Vs. Balwan Singh(2015) 9 AD (SC) 501 : AIR 2015 SC 2867 : (2015) 3 RCR(Civil) 394 : (2015) 6 SCALE 731 : (2015) 7 SCC 373 . The appellant therein is a Cooperative Society registered under the provisions of the Delhi Cooperative Societies Act. The appellant-Society comprised of 150 members, including the respondents, who had enrolled themselves with the Society for allotment of residential quarters/apartments. The appellant-Society raised a demand for payment towards allotment of residential quarters/apartments on 28.05.1998. The respondents failed to comply with the demand. They continued to be defaulters in spite of continuous demand notices. Thereafter, the appellant-Society had passed a resolution expelling the respondents from the membership of the Society after following the due procedure. Since the resolution required confirmation of the Registrar of the Co-Operative Societies under Rule 36 of the Delhi Co-Operative Societies Rules, the same was pl