Ram Ratan Singh and Others vs Khub Lal Gope

Atkinson, J.—This second appeal comes before me from the order made by the Subordinate Judge of Patna, affirming the order of the Munsif dismissing the plaintiff''s claim in this action. The action is brought to recover rent for the years 1317 to 1319 and the claim is based upon a compromise decree obtained in a previous Suit No. 18 of 1911. That suit was primarily for declaration of title by the present plaintiff against the present defendant. The plaintiff alleged in that suit that the defendant was wrongfully in possession of 25 bighas 3 cottas and 14 dhurs of the plaintiff''s land; and he claimed to eject the defendant therefrom, and to recover possession of the same. In that suit the defendant filed a written statement in which he alleged that the 25 bighas odd were his raiyati holding; and that the same had been settled with him by the predecessors-in-title of the plaintiff; and that thus he had acquired a raiyati interest in the land; and was recorded in the Record of Rights as a tenant paying rent at the rate of Rs. 139. In that suit a compromise was arrived at whereby the defendant was allowed to remain on in possession of the 25 bighas odd; on condition that he paid a new rent of Rs. 244-5-0 by quarterly instalments. The defendant also understood and agreed by this compromise to pay by way of mesne profits a certain sum of money representing the use and occupation of the lands, from the time that it is alleged to have taken possession of by the defendant as against the plaintiff''s claim therein. This present action is founded upon that compromise decree; and the plaintiff seeks to recover for the 25 bighas odd, rent at the new rate fixed by the compromise decree, namely Rs. 244-5-0. The defence in this action is that the compromise decree was obtained by reason of duress and fraud on the part of the plaintiff and the malik of the village in which the lands in suit are situated, one Damodar Prasad. Both the Courts have found that the compromise decree was obtained by the plaintiff under circumstances which constituted undue influence and coercion in point of law. Undue influence and coercion are a species of fraud and constitute legal fraud when proved; thus it may be taken that this compromise decree is a decree which in point of law was obtained by the plaintiff, who now seeks to rely upon it, by fraud as against the defendant. That being so what is the law. applicable to the facts of this case? Mr. Hassan Imam contends on behalf of the appellant that he is entitled to rely upon the compromise decree until the same is set aside by the Court having jurisdiction to set it aside; and in respect of which a separate action must be brought by the defendant. Mr. Pugh on the other hand contends that the compromise decree is invalid under the provisions of Section 147A of the Bengal Tenancy Act; and he also argues that it is a document, having regard to the manner in which it was procured which no Court will give support to by an order founded on the decree as if valid and binding. In my view the second of these arguments put forward by Mr. Pugh is the correct one. I do not attach much importance to that portion of his argument which is founded on the invalidity of this decree under the terms of Section 147A. However, irrespective of that portion of his argument; I am of opinion that in point of law, having regard to the conclusive finding of fact arrived at by the two Courts below that the decree was obtained by fraud and collusion, this Court ought to treat the decree which is relied upon to support this action as a nullity. I am supported in the view that I take by a long line of authority. No doubt it would be open to the defendant to bring a separate suit to challenge this compromise decree, and to set it aside; but by reason of the defendant not having taken this step he is not now in my view debarrred or precluded from raising the plea of fraud against this compromise decree for the purpose of urging the Court to reject the claim of the plaintiff which is admittedly founded on the compromise decree. The authorities on this proposition of law will be found reported as Nistarini Dassi v. Nundoo Loll Bose 26 C. 891 ; 3 C.W.N. 670 ; 13 Ind. Dec. (N.S.) 1171, Banke Behari Lal v. Pokhe Ram 25 A. 48 ; (1902)A.W.N 179, Srirangammal v. Sandammal 24 M. 216 ; 9 M.L.J. 338 ; 8 Ind. Dec. (N.S.) 550, Barkat-un-nissa V. Fazl Haq 26 A. 272, Shaminath Choudhri v. Ramjds 13 Ind. Cas. 80 ; 34 A. 143 ; 9 A.L.J.I and Sarbesh Chandra Basu v. Hari Dayal Singh 5 Ind. Cas. 236 ; 14 C.W.N. 451 ; 11 C.L.J. 346. I only desire to add that in my opinion all these cases follow the judgment given in the House of Lords in the case of Bandon v. Becher (1835) 3 C. & F. 479 ; 9 Bligh 532 ; 6 E.R. 1517, where Lord Brougham laid down in clear arid express terms as follows: "It is said that the whole of these proceedings spring from a decree of the Court of Exchequer in Ireland and that that decree being pronounced by a Court of competent jurisdiction upon parties legally before it, cannot now be questioned in another Court of co-ordinate jurisdiction; but if brought into dispute at all should be brought into dispute in the Court where it was originally pronounced." "I agree" he says generally to the proposition; "but I must add to it this one qualification, that you may at all times in a Court of competent jurisdiction-competent as to the subject-matter of the suit itself--where you appear as an actor, object to a decree made in another Court upon which decree your adversary relies; and you may either as actor or defender, object to the validity of that decree, provided it was pronounced through fraud, contrivance or covin of any description." Again Mr. Justice Willes in the case of Reg. v. Saddlers'' (1863) 10 H.L. Cas. 404 ; 32 L.J.Q.B. 337 ; 9 Jur. (N.S.) 1081 ; 9 L.T. (N.S.) 60 ; 11 W.R. 1004 ; 11 E.R. 1083 ; 138 R.R. 217 says at page 431: "A judgment or decree obtained by fraud upon a Court binds not such Court nor any other; and its nullity upon this ground though it has not been set aside or reversed, may be alleged in a collateral proceeding." Thus it is clear that the defendant is not barred from challenging the previous decree in this suit on the ground of fraud. Therefore I think that the lower Courts were perfectly right in dismissing the plaintiff''s action; which was based upon the compromise decree which was obtained under circumstances which constituted duress and fraud in law. For these reasons I disallow this Appeal with costs in this Court, in the lower Appellate Court and in the Munsif''s Court.