(sic) Sibua vs Lalu Ganga

Dixit, J.—The non-applicant Lalu in the present case made an application on 1-7-1948 to the Court below to set aside a decree passed by consent on 1-5-1948 in an appeal in which he was the Respondent. In this application the non-applicant alleged that he had No. knowledge of the compromise, that he did not actually agree to the terms of the compromise and that he did not sign the petition of compromise, and in fact he had no notice of the appeal, he did not appear in the appeal at all and had nothing to do with the petition of compromise. The non-applicant suggested that the applicant, who was the Appellant in the Court below obtained from the Court a consent decree fraudulently by suppressing the service of summons and by getting a false and fraudulent petition of compromise filed and by making someone appear'' in the Court as the Respondent in the appeal for the verification of the petition of compromise.

The learned Additional District Judge found that the non-applicant in this Court, who was the Respondent in the appeal, was ill from 25-4-1948 to 4-5-1948; that he did not appear in the Court on 1-5-1948 and that the petition of compromise did not bear his signature. The learned Judge held that as- the non-applicant was no party to the compromise, the consent decree passed against him was an ex parte decree and that an" application for setting aside such a decree would be within the scope of Order 9, Rule 13. Accordingly he sot aside the compromise-decree and ordered that the appeal would be heard. The Petitioner who was the Appellant in the lower Court has now filed this revision petition.

It is contended on behalf of the Petitioner that a decree by consent can be set aside only by a regular suit; that the consent decree passed in the appeal was not an ex parte decree and could not be set aside upon an application under Order 9, Rule 13; and that at any rate the learned Additional District Judge was not justified in setting aside the decree without holding a proper inquiry into the question whether the compromise arrived at in the appeal was effected by the non-applicant Lalu.

I agree with the learned Counsel for the applicant that the consent decree passed in the appeal cannot be treated as an ex parte decree, and that consequently in Order 9, Rule 13, CPC cannot be applied in the present case. The presiding Judge of the lower Court when he passed the consent-decree on 1-5-1948 was led to believe that all the parties in the appeal were before him and that the petition of compromise was, the petition of both the Appellant and the Respondent in the appeal. In passing the consent decree he did not intend to make it ex parte and the record clearly shows that he did not make the decree ex parte. The fact that the non-applicant Lalu, alleged that he was the real Respondent in the appeal, had no notice of it and did not appear in the Court and that some person impersonating for him appeared and signified his assent to the compromise, does not mean that the decree was an ex parte decree. Indeed a consent decree inherently implies that the Defendant or the Respondent appeared and admitted the claim. The impugned decree in this case was not an ex parte decree but was a decree in the presence of all parties and by their consent and prima facie Order 9, Rule 13 cannot apply to such a decree.

The learned Additional District Judge relied on a decision of the Calcutta High Court in - ''Basiruddin v. Sadhu Tanti'' AIR 1910 Cal 322 (2) (A) for treating the application filed for setting aside the consent-decree as an application to set aside an ex parte decree. In that case it was no doubt held that an application to set aside a compromise-decree on the ground that the applicant was not a party to the compromise and that he had given no authority to file the petition for compromise is an application within the scope of Order 9, Rule 13. The learned Judges of the Calcutta High Court in - ''AIR 1918 Cal 322 (2) (A)'' followed an earlier decision of their Court reported in - ''Bholai Naskar v. Alach Naskar'' 3 CLJ 158 (B). But as has been pointed out in that case the decisions of the Calcutta High Court on this point are not uniform. Richardson J., who was one of the Judges deciding the case of Basiruddin was dubitante and said that if there had been no previous decisions he would have preferred to adopt the view expressed in - ''Damodar Misra v. Hirnashi Naik'' AIR 1915 Cal 821 (1) (C). In Damodar Misra''s case it was held by the Calcutta High Court that a petition to set aside a consent decree, obtained in circumstances similar to those which exist in the present case could not be treated as a petition under Order 9, Rule 13. The Calcutta High Court has also held in - ''Heeralal v. Chotey Lal'' ILR (1947) Cal 73 (D), that an application under Order 9, Rule 13 is not an appropriate remedy for setting aside a consent decree on the ground of non-representation of the party with great respect to the learned (sic) of the Calcutta High Court who decided in - ''AIR 1918 Cal 322 (2) (A)'', the (sic) the two Calcutta cases first referred to at) pear to me to be more logical than the (sic) in Basiruddin''s case.

It seems to me that the instant case (sic) be disposed of on the question whether the (sic) cation to set aside the consent decree came (sic) Order 9, Rule 13 or not. The non-applicant (sic) self did not purport to file his application (sic) aside the decree under Order 9, Rule 13. (sic) stating the circumstances in which the (sic) decree was passed he simply prayed that the (sic) should set aside the decree. The real (sic) that arises for determination is whether the (sic) has inherent power to set aside the decree (sic) on a compromise.

Now, it cannot be disputed that a Court (sic) competent either in review or under its (sic) powers, to set aside a compromise decree (sic) ground that the consent of the parties to the (sic) promise was obtained by fraud. The (sic) party must institute a suit to set aside the (sic) on the ground of fraud. The question is (sic) this broad principle is applicable to the case. Here, the non-applicant challenged (sic) consent-decree on the ground that he gave (sic) sent to the decree that he did not appear (sic) appeal at all, and in fact that he had no (sic) of the appeal and had nothing to do with the (sic) tion of compromise and that the entire (sic) mise proceedings were fraudulent. This is, (sic) fore, not a case where a party gave his (sic) and later on sought to impeach it on the (sic) that his consent was obtained by a fraud. (sic) is a case of fraud upon the Court. The (sic) applicant challenged "the factum of the (sic) and not "the reality of the consent.

Now, there is a well recognised distinction (sic) ween a fraud practised upon a party and a (sic) practised upon the Court. Where an order (sic) tained from the Court on the allegation that (sic) parties have agreed to it and it is asserted by (sic) party later on that he never gave his consent (sic) is always open to the Court to investigate (sic) matter and review its own order if it is (sic) that the party did not give his consent at (sic) such a case it is the duty of the Court to set (sic) the decree or order obtained by a fraud (sic) upon the Court, when the fraud is brought (sic) notice of the Court. But when there is (sic) consent given by a party and he challenged (sic) decree or order afterwards on the ground (sic) his consent was obtained by fraud, in such (sic) the Court cannot exercise its inherent power (sic) set aside the previous decree or order and (sic) remedy of the aggrieved party would be (sic) a suit for setting aside the decree. The (sic) tion between a fraud practised upon a part (sic) a fraud practised upon a Court has been (sic) lucidly stated by Das J. in - Sadho Saran Rai and Others Vs. Anant Rai and Others, . Das J. (sic) served:

A distinction has been drawn in the cases of (sic) Indian Courts between a fraud practised (sic) a party and a fraud practised upon the (sic) It has been laid down that where the (sic) is whether there was a consent in fact, (sic) is power in the Court to investigate the (sic) in a properly constituted application and (sic) aside the decree if it is satisfied that Andhra Pradesh High Court (sic) never in fact consented to it but that the (sic) was induced to pass the decree on the (sic) lent representation made to it that the (sic) had consented to it, but that where (sic) consent in fact, that is to say, where the parties have filed a compromise petition and they admit that they have filed it, but one of the parties alleges that his consent was procured by fraud, the Court cannot investigate the matter either in review or in the exercise of its inherent power, and that the only remedy of the party (sic) to institute a suit to set aside the decree on the ground of fraud. In other words, the factum of the consent can be investigated in summary proceedings, but the reality of the consent cannot be so investigated.

The case of ''Sadho Saran Rai'' (E), was subsequently followed by the Patna High Court in (sic) ''(sic) Sheodhar Prasad Singh and Others Vs. Ramdeo Prasad Singh and Others, and also in - Chutur Prasad Sah Vs. Mt. Bishuni Kuer and Another, . A similar (sic) has been taken by the Calcutta High Court (sic) - Peary Chaudhury v. Sonoory Dass'' AIR 1915 Pal 622 (H) and - S.M. Bose and Others Vs. Hafiz Md. Fateh Nasib and Another, . The Bombay High Court has also held in - ''Basan Gouda v. (sic) urchigiri Goudu'' 34 Bom 408 (J) and - Keshav Ramkrishna v. Subba Manga'' AIR 1939 Bom (sic) (K), that where a consent decree has been passed by practising fraud on the Court, then the decree can be set aside in an application under with. Code of Civil Procedure. I am in respectful agreement with the observations made by Chandavarkar J. sic) - 34 Bom 408 (J)''. He said:

What the Defendant says is that there was a suit against him, and that the suit was declared to have ended by reason, of a decree passed with his consent. He never consented, and the resuit has been that there has been fraud commited upon the Court. The Court was persuaded to sign a decree to which the Defendant had never consented, and that upon the representation that he had consented to it. Therefore once the Court is asked to go back upon its own procedure, it is not a question whether there is any section in the CPC to warrant the action of the Court amending its proceedings. It is an inherent power of every Court to correct its own proceedings where it has been misled.

On these authorities, I am unable to ac-(sic) the contention of the learned Counsel for the (sic) that in the present case the consent (sic) could not be set aside on the application (sic) by the non-applicant and that the only re-(sic) of the non-applicant was to institute a suit (sic) aside the decree on the ground of fraud. (sic) opinion, if the allegations made by the (sic) applicant as to the circumstances in which (sic) applicant got the lower Court to pass a con-(sic) decree are substantiated, then the Court would (sic) under a duty to exercise its inherent powers (sic) aside the decree.

(sic) Learned Counsel for the Petitioner then (sic) that In this case there was no proper in-(sic) into the question whether the compromise (sic) resulted, in the decree was recorded in the (sic) of the non-applicant and whether it bore (sic) non-applicant''s signature. There is consider-(sic) in this objection. The learned Addi-(sic) District Judge came to the conclusion that (sic) compromise petition was not filed by the non-(sic) Lalu and that he did not sign it, on the (sic) of two witnesses Bachchilal and Sawalia (sic) that a few days before and after (sic) that is the date on which the consent (sic) was passed, Lalu was ill and did not leave (sic) and of the witness Biharilal Saxena (sic) expert who said that the signa-(sic) appearing on the compromise petition and the statement recorded by the Court on 1-5-1948 of a person said to be Lalu were not of the non-applicant Lalu. In my opinion the evidence of these witnesses is not very decisive. (After discussing the evidence His Lordship proceeded:) In my view a complete and thorough inquiry into the circumstances in which the compromise was recorded and the decree was passed, is very essential in this case. It must, therefore, be remanded for a fresh disposal in the light of the above remarks. If the parties fail to produce any further evidence, the Court itself shall summon Hamira and Mr. Saxena the hand-writing expert and examine them on the points indicated above. In the event of these witnesses being examined as court witnesses, their costs shall be levied on the unsuccessful party in the lower Court. On the findings that may be arrived at by the learned Additional District Judge, he should also consider the desirability of initiating any criminal proceedings against the party concerned.

In the result the order passed by the learned Additional District Judge setting aside the compromise decree is reversed and I remit the case to the lower court for further inquiry and for disposal of the application filed by the non-applicant Lalu according to law. Costs of this application will be the costs in the cause.