Basudeo Misir vs Mt. Paudharo Kuar and Another

Macpherson, J.—This application arises out a suit in which the petitioner was plaintiff and defendants 1 and 2 were a pardanashin lady and her son respectively. A petition of compromise was filed on 13th February and accepted by the Court two days later. The decree was, drawn up on 20th February. On 23rd the lady filed an application denying that she had assented to the compromise and further alleging that an intoxicant had been administered to her son, defendant 2, who was addicted to ganja. The learned Munsif heard the parties, recalled his orders accepting the compromise and called upon the parties to proceed with the case. He found that there had not even been a proposal to the lady, much less an actual compromise, that "a secret march had been stolen upon her" and fraud practised on the Court, and that she never gave any authority to the pleader who on the day when the petition was filed, was suddenly asked to sign the compromise petition.

An appeal was preferred against this order which the learned District Judge held to be incompetent as the order had been passed u/s 151 in exercise of the inherent jurisdiction of the Court.

In revision substantially two points have been taken, first, that an appeal lay under Order 43, Rule 1 Clauses (m) and (w), inasmuch as the order of the Munsif was one refusing to record a compromise or one allowing a review of judgment; and secondly, that if it be not so, and Section 151 be called into operation in spite of the specific remedies available to defendant 1, nevertheless the jurisdiction exercised u/s 151 was analogous to that exercisable under Order 23, Rule 3 and so the order passed was subject to appeal.

It is urged that the substance rather than the form is to be considered and reference is made to the decision in Sadho Saran Rai and Others Vs. Anant Rai and Others, . Now on reading the order of the learned Munsif, it is perfectly clear that on the facts found, which there seems no reason to doubt, this Court ought not to interfere in the exercise of revisional jurisdiction unless very strong considerations indeed and in particular considerations of law constrain it to interfere. There can be no doubt that there never was a lawful compromise of any kind and indeed the attention of the learned Munsif may well be directed to the conduct of the mukhtar and the pleader which he has rightly stigmatised in strong terms.

It appears doubtful whether such persons ought to be allowed to carry on the profession of law. As regards the possibility of passing an order u/s 151 in the circumstances disclosed, reference need only be made to the decision of this Court in Sabitri Thakurain v. F.A. Savi AIR 1927 Pat 351. It was there held that even the successor of the presiding officer had power to set aside a similar order in similar circumstances as being illegal and ultra vires. This Court is bound by that decision and personally, as at present advised, I am not prepared to dissent from it in spite of the considerations adduced by the learned Advocate for the petitioners.

As to the second point, it is only necessary to state in respect of the decision cited that it was actually held there that where it was found, that the aggrieved party had not in fact consented to the compromise, the Court had inherent power to set aside the compromise.

Apart from that, it seems to me clear that where an order is passed under a provision of law which is not made subject to appeal, it is no answer to say that if it had been passed under a different provision under which it might have been passed and which provision is made subject to appeal, then an appeal would have been competent. In this case the learned Munsif exercised his inherent jurisdiction which on the decision cited was properly exercisable even if action might also have been taken under statutory provisions enabling him to take the same course. In my opinion no appeal lay to the learned District Judge. All the considerations urged in favour of the rule are untenable. Accordingly it is discharged with costs: pleader''s fee two gold mohurs.