Kanumarla Polamma (died) and Others vs Dandaga Sooramma and Others

Mack, J.—The facts of this case are rather unusual. The petitioner is the plaintiff who sued her mother as defendant 1, her sister as

defendant 2 and her sister''s husband as defendant 3 to recover property on the basis of a settlement deed executed by her mother. The suit O. S.

640/41 was resisted by defendant 3 who claimed fall rights as an illatom son-in-law. The suit was decreed in terms of a compromise Ex. D-2

dated 20th November 1942 filed into Court on that date. The plaintiff and defendant 3, presumably with their lawyers were present and signed it.

Defendant 3 filed O. S. No. 81 of 1943 on the file of the District Munsif''s Court of Markapur to set aside this compromise on the ground that the

real compromise, copy of which he produced, Ex. P-4, entered into by all the parties on 14th November 1942 had been suppressed and that this

compromise, Ex. D-2, which was filed into Court was fraudulently substituted. That suit was dismissed, but defendant 3 who is the contesting

respondent succeeded in A. S. No. 54 of 1946 in having the compromise set aside on the ground of fraud, by the learned Subordinate Judge of

Kurnool. Differing from the learned District Munsif, he found that the petitioner and her henchmen ""had forged the name of P. W. 3 as an attestor

in the original of Ex. D-2 in addition to the fraud played against the plaintiff"" ; the plaintiff in the context of that judgment being the contesting

respondent. The learned Subordinate Judge set aside the compromise decree in O. S. No. 640 of 1941 on the file of the District Munsif''s Court

of Markapur, on a finding of fraud which is binding on all the parties. The petitioner filed an application u/s 151, Civil P. C., before the District

Munsif to restore O. S. No. 640 of 1941 to file. This revision is filed against his order of dismissal.

I am quite unable to follow on what principles either of law or justice, such a petition could have succeeded. The CPC makes no provision for

any such application before the trial Court to restore a suit to file which has been decreed on the basis of subsequent findings in another suit.

Section 151, Civil P. C., gives the Court inherent powers to make orders as may be necessary for the ends of justice, and can scarcely be invoked

by the present petitioner who has been found guilty of a fraud on the Court. My attention has been drawn to a decision by Spencer J., in Arumuga

Goundan and Others Vs. Periavanjiappa Goundan and Others, , in which a decree against minors not validly represented by guardian was held in a

subsequent suit, to be not binding on them. Subsequent to this finding, the Court which passed the prior decree restored the suit to file u/s 151,

Civil P. C., and proceeded to try the suit after making the minor a properly represented party to this suit. Following a decision of the Privy Council

in Monoharlal v. Jadunath Singh, 28 ALL. 585 : 33 I. A. 128, the District Munsif''s order was set aside the parties remitted to their original rights.

In the Privy Council decision, a suit was filed to set aside a compromise on the ground that one of the defendants was a minor and that leave of the

Court to enter into it had not been obtained. The resulting decree which their Lordships considered in the appeal was a very wide one directing the

compromises and decrees in the suit to be set aside in their entirety and further more went on to declare that the result would be that those suits

would ""have to be decided afresh."" It was held that it would be quite sufficient if there is a declaration that the compromises and decrees are not

binding upon the minor and that he is remitted to his original rights. That decision is not directly in point here though the decision lends support to

the position that when a compromise decree in a suit is set aside in a subsequent suit, the Court that first tried the suit had no powers to restore that

suit to file and proceed with its trial. There is no decision on all fours with the present case, as I said the facts being somewhat peculiar and the

astonishing feature about them being, how such a fraud was perpetrated on the Court in the presence of lawyers and the parties if the compromise

petition was read out, as it should have been in extenso, in Court. The learned Subordinate Judge in dealing with the compromise, Ex. D-2,

however made the following observations:

Even trained lawyers have not been able to follow the terms of the compromise mentioned in Ex. D-2 and so it is no wonder that an illiterate man

like the plaintiff was not able to discover the fraud, and the compromise was read out in open Court.

This compromise is not before me nor have even the learned advocates on both sides who have argued before me perused it. It is not impossible

for such a fraud in a compromise drawn up by unauthorised legal advisers in the village to have been perpetrated on the learned advocates and the

Court, with the former doing no real active work and concentrating mainly on forensic argument. The learned Subordinate Judge has also

described the terms of the compromise which he set aside as being meaningless. It is difficult to follow why the trial Court allowed this meaningless

compromise to become a decree. I cannot too strongly emphasise the need for not only the advocates on both sides but also the trial Court

reading through carefully, the terms of a compromise before making it a decree of the Court, for obvious reasons. Compromise decrees which

have to be executed, should be in the clearest terms, free from ambiguity, which the executing Court can easily understand and carry out. So far as

the present petition is concerned, there is only one disposal to give it and that is dismissal. Had the position been reversed and had the plaintiff sued

to set aside a fraudulent compromise decree filed into Court by defendants, one which was detrimental to his rights in the suit, it would be

manifestly inequitable to say that the plaintiff would have no right to have his original, suit retried. Consequential relief arising out of his suit to set

aside the compromise decree on the ground of fraud could have been asked for in that suit either in the shape of damages or by a prayer for retrial

of his original suit. In such a case, I think it would have been quite competent for the second Court to grant this relief and in this way, the original

suit could legally have been restored to file. With these observations, the petition is dismissed with costs.