Srimati Sabitri Thakurain vs F.A. Savi and Others

Civ. Rev. No. 457 of 1925 is against the order of Mr. N.N. Chakravarti, Subordinate Judge of Monghyr, dated 26th November 1924, directing that Suit No. 103 of 1920, instituted by the petitioner against the opposite party, be decreed in term of a compromise petition filed on the 25th November 1924.

Civ. Rev. No. 322 of 1925 is directed against the order of Mr. R.C. Choudhary, Subordinate Judge of Monghyr, dated 6th July 1925, rejecting an application filed by the petitioner u/s 151, Civil P.C. for setting aside the decree passed on the basis of the compromise referred to above.

The property involved in this litigation is of considerable value comprising large zamindaris in Bhagalpur aa well as moveables. The last holder of these properties was one Babu Ugra Mohan Thakur. He died childless on 29th January 1914. The petitioner Srimati Sabitri Thakurain is his widow. He is said to have left a will, dated 10th May 1913, purporting to give away all his properties to his nephew Surajmohan Thakur, opposite party 2. Mr. Savi is the executor of the will. He took out probate of the will in testamentary suit No. 3 of 1914 after a hot contest by the lady. The probate has been confirmed by the High Court as well as by the Privy Council. The probate matter has, therefore, now teen set at rest.

The lady, however, instituted suit No. 103 of 1920 in the Court of the Subordinate Judge of Monghyr, seeking to have the will declared invalid and to have her right declared to succeed to the entire property of her husband in preference to his nephews. In that case she impleaded the executor, Mr. Savi, the legatee Surajmohan Thakur, Naresh Mohan Thakur, another nephew of Babu Ugra Mohan Thakur, and the trustees of the estate of his brother Pranmohan Thakur, namely Srimati Sundarbati Thakirain, widow of Pranmohan Thakur, and one Rai Bahadur Dabi Prasad Marwari. Hardutt Saithani, wife of Rai Bahadur Dabi Prasad Marwari, was also impleaded as a party, and so also Baithi Bibi, a mistress of Ugramohan Thakur. Of these, Srimati Sundarbati Thakurain is dead. The suit was brought in forma pauperis, and after some contest as to her right to sue as such, she was ultimately permitted to continue her suit without payment of Court-fee. The matter regarding her capacity to pay Court-fee also came to this Court on several occasions which gave rise to Civ. Rev. Nos. 232 of 1920, 312 of 1921 and Savitri Thahurain v. Secy. of State AIR 1924 Pat 27 and 432 of 1923. These have been referred to only to show how protracted the litigation has been between the parties.

The order sheet in the suit shows that the parties fought tooth and nail at every stage, and the case filed in 1920 gave rise to as many as 123 orders, when, on the 21st November 1924, the Court directed to hear the parties on preliminary issues Nos. 6(a) to 6(c). These issues are:

(6a) Whether the alleged will, dated 10th May 1913, is operative as to all or any other properties in suit?

(6b) Whether the decree of the probate testamentary suit No. 3 of 1914 was fraudulently obtained as alleged by the plaintiff? If so, does it bind the plaintiff?

6c) His the Court jurisdiction to try issues (6a) and (6b) in this suit?

(vide Order 121, dated 5th November 1924). This order was also objected to and the plaintiff came to this Court in revision. The Subordinate Judge on the 21st November 1924, adjourned the hearing of the aforesaid issues "on questions of law only" to the 27th November 1924.

In the meantime there was a talk of compromise between the parties, and the lady who happened to be in Monghyr, came to the railway station on the 25th November 1924 for going to Darbhanga. While she was in the waiting-room at the railway station the Subordinate Judge, Mr. N.N. Chakravarti, after finishing his Court work happened to come to the railway station for some business of his own. At that time a petition of compromise was handed over to the Subordinate Judge by the lady''s pleader, Babu Hito Rai. The Subordinate Judge made the following note on the top of it:

Filed before ma at 5-12 p.m. and read over to the plaintiff who admitted the same.

The next morning, that is on the 26th November, the Subordinate Judge recorded the following order in court:

Petition of compromise filed on 5th November 1924 after court hours; put up to-day with the consent of the parties. Ordered: Suit be decreed in terms of the compromise. The Court-fees payable by the plaintiff will be paid by the defendant in a month and will be set off towards the maintenance allowed to the plaintiff.

On the 4th December 1924, the decree bearing the terms of the compromise was signed and sealed by the court.

On the 7th April 1925, the lady petitioner filed an application before the Subordinate Judge of Monghyr for setting aside the compromise and the decree, u/s 151, Civil P.C. The principal ground stated in the petition for setting aside the compromise is that the plaintiff consented to compromise the litigation on account of the solicitations of defendant 2, the legatee Surajmohan Thakur, and that she agreed to certain terms and believed that the petition of compromise contained all the terms to which she had consented and under that belief she signed the compromise petition in the waiting room and the petition was taken away by opposite party 2, Surajmohan Thakur, and handed over to the Subordinate Judge at the Monghyr railway station without her knowledge and authority; that somebody standing at some distance outside the waiting-room purported to read out the petition but she could not catch the words read out to her; and believing that the petition read out to her contained the terms which she had agreed to, she answered in the affirmative to a query put by the Subordinate Judge without knowing what actually were the contents of the compromise petition arid without suspecting that the important terms were left out from it.

Some time after this she came to know at Allahabad from one Balbhadara Thakur, an agent of the opposite party, that the petition of compromise which she had signed did not contain the important terms. She then came to know of the fraud practised upon her by Surajmohan Thakur in omitting from the compromise petition the important terms and obtaining her signature fraudulently upon it and of the compromise petition having been handed over to the Subordinate Judge-through Hito Rai, Pleader, whom she had never authorized to sign or agree to any terms of the petition or to file any compromise petition and that the real facts were fraudulently suppressed from the Court and consequently the Court, on account of the fraud practised upon it, passed an order directing the suit to be decreed in terms thereof. the impugns the procedure adopted by the Subordinate Judge as being illegal and ultra vires and consequently the order passed by him directing a decree to be prepared in terms thereof, is illegal and without jurisdiction. Upon these allegations she filed a petition u/s 151, Civil P.C., on the 7th of April 1925 before Mr. N.N. Chakravarti Subordinate Judge to rectify the fraud praised upon the Court and to set aside the compromise and the decree prepared in terms thereof.

The petition was opposed by defendants 1 and 2, the executor Mr. Savi and the legatee Surajmohan Thakur. The facts alleged in the petition were seriatim denied by the opposite party.

The petition was, upon transfer, heard by another subordinate judge, Mr. Ram Chandra Choudhary. He did not consider it necessary to inquire into the truth or otherwise of the allegations made in the petition and dismissed the application upon the sole ground that it did not come u/s 151, Civil P.C. In passing the order the Subordinate Judge-assumed that the allegations of the lady regarding fraud, etc. were true. He held that her remedy was by a separate suit and not by an application u/s 151 of the Code.

Against this order of the Subordinate Judge, dated the 6th July 1925, the petitioner has come to this Court in revision and this has given rise to civil revision No. 322 of 1925.

As already observed, the lady has filed a separate application against the order of the Subordinate Judge, dated the 26th November 1924, directing the suit to be decreed in terms of the compromise. This application has given rise to civil revision No. 457 of 1925. The order complained against runs as follows:

Petition of compromise filed on 25th November 1924 after Court hours. Put up to day with the consent of the parties. Ordered suit be decreed is terms of the compromise.

The contention of the lady is that the aforesaid order was ultra vires and without jurisdiction. In support of this contention reliance has been placed upon Rule 3, Order 23, Civil P.C., which runs as follows:

Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise, or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the suit.

It is contended that the order passed by the Subordinate Judge decreeing the, suit in terms of the compromise does not show: (1) that it was "prove to the satisfaction of the Court" that the suit in question was adjusted by any lawful agreement or compromise and (2) that the Court did not direct the compromise "to be recorded" in terms of Rule 3, Order 23, referred to above, and unless these two conditions were fulfilled the court had no jurisdiction to "pass a decree in accordance" with the compromise petition handed over to Mr. N.N. Chakravarti Subordinate Judge at the railway station at Monghyr on the 25th November, 1924.

In support of this contention the learned Counsel on behalf of the lady has referred to the case of Paban Sardar v. Bhupendra Nath Nag [1916] 43 Cal. 85. In that case the date for final disposal of the suit was fixed for the 4th May 1912 and a few days before that day, that is, on the 25th April the plaintiff filed an application which was consented to by the defendant. The prayer in the petition was that the suit be dismissed. The Court directed the petition to be put up on the date fixed, the 4th May 1912, and on that date the plaintiff filed a fresh application praying to withdraw his previous application on the ground that it was procured from him by undue influence. The subordinate judge before whom the suit was pending inquired into the matter and held that there was no improper influence exercised upon the plaintiff and that he was bound by the terms of the application of the 25th April. He passed a decree, dismissing the suit in cr�mes of that application. The plaintiff appealed to the district judge and a preliminary objection was raised as to the competency of the appeal by reason of Section 96, Clause (3), Civil P.C. which provides that no appeal shall lie from a decree passed by the Court with the consent of parties. This contention was sought to be met on behalf of the appellant by reference to Order 43, Rule 1(m), which provides for an appeal from an order passed under Order 23, Rule 3.

recording or refusing to record an agreement, compromise or satisfaction.

The lower appellate Court overruled this contention on the ground that the appeal in question was not directed against the order recording the agreement, but against the decree in which that order had been, embodied and also upon the ground that the appeal from the order was barred by the statute of limitation, Sir Lawrence Jenkins, C.J., and Chatterjea, J., on appeal by the plaintiff, observed as follows:

A decree in this case was passed by the subordinate judge not after a hearing but on the basis of a compromise, that is to say, it was a decree justified, if at all, by Order 23 Rule 3. But when the terms of that rule come to be examined, it is apparent that a decree can be passed only after there has been an order that the compromise be recorded. This is not a mere matter of form. It has an important result. If the decree is in accordance with a recorded compromise, then it may well" be contended that the provisions of Section 96, Clause (3) of the Code applied, and the person feeling himself aggrieved by such a decree may be without the remedy of an appeal from that decree. In this case there was no order that the compromise be recorded; and accordingly there was no order, from which an appeal could be preferred. And as there was no order so there could not be a decree under Order 23, Rule 3. The result has been that though the plaintiff maintains that he did not enter into the Compromise he has not had the opportunity which the law provides of discussing this question not only in the Court of fit instance but, if necessary, in the Court below. The appellant therefore, appears to me to e a person under a distinct grievance and nonetheless because apparently the learned subordinate judge thought badly of him.

The case was accordingly remitted to the Court of first instance in order that it might be determined according to law. Mr. Manuk on behalf of the opposite party, distinguishes this ruling upon the ground that the order in the present case ordering the suit to be "decreed in terms of the compromise" is an order directing in effect that the compromise be recorded, though not said so in so many words.

Rule 3, Order 23 distinctly requires two things to be done when it is proved to the satisfaction of the court that the suit has been compromised: (1) that the court shall order such compromise to be recorded; and (2) that it shall pass a decree in accordance therewith so far as it relates to the suit. In this case there is no order of the court directing the compromise to be recorded. The court as only passed a decree in accordance with the compromise. It is difficult to distinguish the order passed in the present case from that which was the subject-matter of the decision by Sir Lawrence Jenkins, C.J., in the Calcutta case referred to above.

Another contention of the petitioner before us is that on the 26th November 1924, the day on which the aforesaid order was passed, the court had no jurisdiction to take up the case, It is said that the petition, was handed over to the Subordinate Judge at the Monghyr railway station after court hours and without any previous-appointment consented to by the parties, for the case to be be taken up at the railway station. The Subordinate Judge casually happened to be at the railway station and the making over of the petition to him was not a legal presentment of it to a court. Reference is made to the General Rule and Circular Orders of this Court, Vol. 1, (Civil), Rule 9 at page 3 which says:

Petitions, applications, etc. should always be taken is open court, and usually at the commencement of the daily sitting of the court

Rule 5 at the preceding page 2 says: Without the consent of the parties and in the absence of urgent necessity no civil trial should proceed on Sundays or holidays gazattad u/s 15(2), Act 12, 1887.

It is conceded that, with the consent of the parties, the court may hear a case outside the usual place of the sitting of the court and beyond the Court hours; but it is contended that in this case there was no such consent previously given by the parties. The petition in question, handed over at the railway station, according to the contention of Mr. Dutt for the petitioner, was not validly presented to the court. It is said that the Subordinate Judge received it as a mere custodian thereof, and in order to have jurisdiction to dispose of it in accordance with law the application should have been formally presented to him in Court on a subsequent date and heard and disposed of in the presence of the parties or their duly constituted legal representatives. The petition bears the seal of the court, dated the 25th November 1924, and it is not known whether the Subordinate Judge had the seal with him at the time when he was at the railway station, or that ha sealed it on that day at his house after returning from the station, or whether it was sealed on the following day though antedated. The petition in question though presented to the Subordinate Judge on the 25th November should not be deemed to be on the minutes of the court proceedings on that date.

The Subordinate Judge himself did not treat it to be so and consequently he did not pass any formal order upon the petition on the 25th November though the parties were present before him. If the petition was a valid presentment on the 25th November at the railway station there was nothing to prevent the Subordinate Judge, from taking it then and there and disposing of it by passing a judicial order. He does not even do not the petition to be taken up on the date fixed in the case. The note of the subordinate judge, of the petition having been filed before him at the railway station on the 25th of November, cannot in any sense be construed to be a judicial order. This is also apparent from the opening sentence of the order of the 26th November wherein the subordinate judge says:

Petition of compromise filed on 25th November 1924 after court hours (not a valid presentment) Pat up to-day with the consent of the parties.

The Subordinate Judge, therefore, considered the patition as a formal presentment to the court on the 26th November in terms of the General Rules and Circular Orders referred to above. He was also cognizant of the fact that the petition of the 25th November could not be taken up in his judicial capacity "without the consent of the parties," for that was not the date fixed for the hearing of the case.

In order, therefore, to give him jurisdiction on the 26th November to deal with this petition, he invokes the aid of "the consent of the parties." It is well-known, and in fact if; is the elementary principle of law that a case fixed on a particular date cannot be taken up prior to that date unless the parties consent to it. It is nobody''s case that the parties were present in court personally on that day and certainly the lady petitioner was not present in court in person With the consent of the parties referred to in the order in question must not be understood in its literal sense as a consent having been given by the parties in person. It includes a consent given by their duly constituted agents, such as, pleaders, advocates, etc., for any act or appearance required to be done by parties may be done on their behalf by their duly constituted recognized agents, vide: Order 3, Rule 1, Civil P.C., The Subordinate Judge knew that the parties were not personally present before him on the 26th November, at least the lady was not present, and therefore the petition was not put up on that date with the consent of the parties themselves. Hence the Subordinate Judge, when he says that it was taken up with the consent of the parties, obviously means with the consent of the legal advisers of the parties.

The question then is whether the petition of compromise was taken up by the court on the 26th November, a day prior to the date fixed for the hearing of the case, with the consent of any duly constituted pleader or agent on behalf of the lady. There was no consent given on the 25th November when the petition was handed over to the Subordinate Judge at the railway station, by the parties or their pleaders for the petition to be taken up on the 26th, for, the Subordinate Judge while noting on the petition the fact of its having been filed does not say so. This is also obvious from the order recorded in the order sheet on the 26th November. Mr. Dutt contends that the lady had already left Monghyr and that she had not authorized any pleader or duly constituted agent to consent on her behalf to the case being taken up on the 26th November and to agree to the disposal of the case in accordance with the petition. He refers to the vakalatnama or the power-of-attorney given by the lady in favour of the pleaders, Babu Hito Rai and Babu Kedar Nath Bose, to conduct her case. This vakalatnamah expressly says that the pleaders shall not file:

petitions of compromise or withdrawal of suit or petitions for reference to arbitration.

It is contended that under this power-of-attorney the pleaders of the lady had no right or power to present the petition in question or to consent to its being taken up on the 26th November. Mr. Dutt relies for this contention upon the case of Thenal Ammal v. Sikkammal [1918] 41 Mad. 233. In that case a petition of compromise was filed purporting to have been agreed to on behalf of the parties. It was signed by the pleaders of the parties. A decree was passed in terms of the compromise petition and on an objection by the plaintiffs the compromise decree was set aside upon the ground that the vakil who signed and presented the petition had no right to do so under the terms of the power-of-attorney which contained a provision authorizing the vakil:

to present, if necessary, petitions for razinama, for withdrawal and for referring to arbitration and to sign the razinama petitions, etc.

It was held that the aforesaid stipulation did not give authority to the vakil to enter into a compromise without reference to his clients. The compromise was sought to be supported upon the ground that there was inherent power in the vakil to enter into the compromise and to withdraw the suit by his mere engagement on behalf of his client. The contention was overruled upon the ground that:

It is not the ordinary duty of an Advocate to negotiate terms, without reference to his client, with the opposite party. Such an action is calculated to place the petitioner in a false position.

The learned judges observed that it was not desirable that such a power should be vested in a vakil or advocate in the interest of the profession, nor is it in consonance with the highest ideal of the profession or of justice. It was further pointed out that it is for these reasons that Order 23, Rule 3, expressly say that there should be an inquiry as to the terms being lawful or not and that the Court should direct formally a compromise to be recorded after its having been satisfied that it was a lawful compromise. Their lordships observe as follows:

It is pointed out by all the Lord Justices that the Court has plenary powers in any case to inquire into the justness or be is fides of the settlement reported to it. In this country such a power should be exercised by the Court even more largely than in. England. It is for that reason that the intermediate stage of recording the compromise is introduced in a Code. We are afraid that Courts salon appreciate the significance of this provision. At any rate, we are satisfied that in this case the importance and necessity of recording the compromise was not realized by the subordinate judge. We must hold that there has not been a sufficient inquiry into the question whether the compromise was authorized by the appellants, especially as we hold that the vakalat does not give authority to the vakil to enter into the compromise without reference to his clients.

This is exactly what His Lordship Sir Lawrence Jenkins, C.J., meant when he held in the case, referred to above, Paban Sardar v. Bhupendra Nath Nag [1916] 43 Cal. 85, that the provision in the code of recording the compromise is not a mere matter of form but of substance.

The lady says in her petition u/s 151, Civil P.C., that she did not authorize Babu Hito Rai (whom she had befriended for the purpose of this case) to file the compromise petition in question or to agree to the case being taken up on the 26th November or to act in any manner in connexion with the compromise of the suit. The case was fixed for the 27th November.

It is difficult to appreciate the anxiety of the Subordinate Judge to expedite the disposal of the application filed before him on the 25th November at the railway station before the 27th of November, the date fixed for the hearing of the case. There is nothing to prevent a petition of this nature being filed previous to the case fixed for the hearing of the case, but there should be a good justification for disposing of the application or the suit before the date fixed for the hearing of the case. In In this case the defendants were six in number on the date the compromise petition was filed and almost all of them, save perhaps defendant 6, had filed written statements and had raised issues in the case resisting the claim of the plaintiff. The compromise petition purports to deal with the dispute between the plaintiff and defendants 1 and 2. The case was fixed for the 27th November and therefore it is not understood why, supposing there was consent on behalf of only the plaintiff and defendants 1 and 2, the case was taken up on the 26th November, before the date fixed for its hearing. Apart from anything else the result has been an anomalous decree prepared by the Court below. On that date, the 26th November, the Court obviously did not know that there was any other person impleaded in the suit or interested in it except the plaintiff and defendants 1 and 2. The learned Subordinate Judge obviously did not even know whether all the parties had or had not entered into any settlement of the case. In the order in question he seems to have been under the impression that the entire suit was disposed of, not only as between the plaintiff and defendants 1 and 2, but so far as all the other defendants were concerned, or else there would have been some order passed with regard to the other defendants. It may be that those defendants after the compromise had no interest in the litigation. It may be that the plaintiff could not press her claim against those defendants after the compromise in question; still the suit had to be disposed of so far as those defendants (3 to 6) were concerned either by dismissing the suit against them for want of evidence on behalf of the plaintiff or on account of her not pressing the case against them. The plaintiff claimed certain reliefs against defendants 3 to 6. The Court should have recorded an order disposing of those reliefs including directions as to costs. If it was meant to dismiss the suit against them an order to that effect should have found place in the order passed on the 26th November and the decree which followed it.

In order to avoid such a mischief Rule 3, Order 23 requires that the Court should enquire into and be satisfied as to the compromise having been lawfully arrived at and should direct that the compromise be recorded only after having been so satisfied. The omission to comply with the requirements of that rule goes to the root, of the jurisdiction of the Court to pass a decree in accordance with the compromise as has been held in the ruling quoted above. The non-compliance with the provisions of the rule has affected the authority of the order of the subordinate judge, dated the 26th November 1924, and the decree passed on the basis of that order.

The plaintiff complains that if the case were taken up on the 27th November, the date actually fixed, and had the Court made enquiries about the compromise petition it would have come to know that the lady had no authorized pleader or agent to act in the matter of compromise and the Court would then have withheld its sanction to the compromise and would not have directed a decree to be prepared in terms thereof. The suit would have then proceeded in its ordinary course. What would have been the result of the suit on the 27th November, the date fixed for its hearing, we need not conjecture. That was the date fixed not for disposing of the case on merits, but for hearing the parties on preliminary issues 6(a) to 6(c) in pursuance of Order 121 passed by the subordinate judge on the 5th November 1924. The plaintiff was aggrieved by this order and had to come to this Court in revision objecting to the procedure adopted by the subordinate judge, directing the issues to be tried piecemeal. She had obtained a rule from the two learned judges of this Court (Mullick and Kulwant Sahay, JJ.) on the 18th November 1924 and the subordinate judge was called upon to give an explanation as to the procedure adopted by him. This Court further directed that the said preliminary issues should not be heard until further orders of the Court, The subordinate judge submitted his explanation on the 21st of November 1924, and until the matter was dispose of in this Court the subordinate judge could not hear the parties upon the aforesaid preliminary issues on the 27th November 1924.

As a matter of fact, on the 28th November 1924, the rule was made absolute and the order was passed by this Court directing the subordinate judge not to hear issues 6(a) and 6(b) and a letter to that effect was already issued. The High Court, of course, did not know of what had happened in the meantime in the Court of the subordinate judge on the 26th November, even "before the date actually fixed for the hearing of those issues, namely that the suit was disposed of in terms of the compromise petition. The subordinate judge knew very well that the matter was pending in the High Court on the date he disposed of the suit. This is another reason why he should not have disposed of the compromise petition except on the date fixed for the hearing of those issues.

Mr. Manuk on behalf of the opposite party contends that the petition of compromise is in vernacular and that every page of it was signed by the lady and read out to her at the railway station; she admitted its correctness: it must therefore he presumed that she was fully aware of the contents of the petition and it is not open to her to contend that the petition does not contain all the terms agreed upon between the parties. These facts have, however, not been investigated. The lady repudiates these facts and says that she was deceived into the belief that the petition contained all the terms, and that when it was read out to her she did not catch the words, being in the waiting room and the person who read it being outside on the platform at some distance. Without investigation the subordinate judge assumed those facts to be correct for the purpose of his order. Therefore, we are not in a position to give effect to the contention of Mr. Manuk.

Again, Mr. Manuk says that this petition, though not actually handed over to the subordinate judge at the railway station, the lady must be presumed to have known it. She, on the other hand, says that she did not present it, nor did she authorize anyone to present it, and suggests that it was handed over to the subordinate judge fraudulently by the opposite party at the railway station, in order to obtain an admission from her hurriedly without letting her know the contents of the petition. This again is a contentious matter and has not been investigated.

Mr. Manuk also contends that the omission on the part of the subordinate judge to record any order with respect to the reliefs sought against defendants 3 to 6 does not vitiate the order of the subordinate judge so far as the plaintiff and defendants 1 and 2 are concerned. He says that the irregularity does not go to the root of the case. In this view he distinguishes the cases cited on behalf of the petitioner: Malchand Boid and Others Vs. Osman Ali Mandal and Others, , Taraprasanna Sarkar and Another Vs. Kalikamohan Sarkar and Others, , and Gobind Chandra Sardar v. Bhagabat Sardar [1915] 27 I.C. 242. In the first case the mortgage itself became in fructuous on account of the person interested in the mortgage not having been properly represented in the compromise entered into between the mortgagor and some of the more gages and hence the compromise decree was set aside. The other two cases related to suits for partition between co sharers some of whom had not joined the compromise; consequently the compromise was set aside.

It is also said that the parties not represented in the compromise, that is, defendants 3 to 6, have not made any objection, while in the present case the lady who took benefit under the compromise is the objector and wants to resile from the compromise. Be that as it may, the subordinate judge in the present case did not comply with the imperative directions contained in the Civil P.C. in dealing with the compromise in question. He did not-inquire as to whether it was lawfully entered into or not and he disposed of it in the absence of the plaintiff and on a date not fixed for the hearing thereof.

The order of the subordinate judge of the 26th November 1924 is, therefore, not, only bad in law, but is without jurisdiction and the decree prepared on the basis of it is equally so. It seems from the summary order passed by the subordinate judge that he did not at all bestow his mind to the considerations of the compromise and its terms and did not realize the scope of the suit and the parties concerned in it. The compromise was, therefore, not judicially disposed of and the order passed by the subordinate judge lacks in judicial sanctity and the plaintiff can very well seek to avoid the order as well as the decree passed on the basis of it.

The plaintiff applied u/s 151, Civil P.C. to have the order set aside. The application was made before the subordinate judge, Mr. N.N. Chakravarti, who had passed the order directing the suit to be decreed in terms of the compromise. On the prayer of the opposite party he directed the question regarding the maintainability of the application to be disposed of first At this stage the case was, under the orders of the district judge, transferred to the file of another subordinate judge, Mr. R.C. Choudhary. He held that the application did not come u/s 151. Civle P.C. and that the remedy, if any, to the petitioner was by means of a separate suit. The subordinate judge has referred to a number of authorities cited before him on both sides. There is no doubt as to the principle enunciated in those cases.

In Basangowda Hanmantgowda Patil v. Churchigiri Gowda Yogangowda [1910] 34 Bom. 408, a consent decree was set aside u/s 151 of the Code upon the ground that the pleader who signed it on behalf of the defendant was not engaged by him, nor had he any authority to sign the petition. The vakalatnama filed in the present case not only that it does not confer any power to sign any compromise, petition or to enter into any compromise but it expressly says that the pleader shall not enter into any compromise or sign or prisenh any application compromising or adjusting the suit on behalf of the lady. Pleader Hito Rai bad no power to file the compromise in suit. I fail to understand why the principles of this ruling should not be applied to the present case. The learned subordinate judge does not apply it upon the ground that the petition was signed by the lady and was presented at the railway station. He has not taken into account the fact that the petition was actually taken up on the 26th November in the absence of the lady and without anybody to represent her on her behalf and that it was taken up on a date not fixed for the case without any valid consent by her or on her behalf by any duly authorized pleader. It is conceded by the learned, subordinate judge, upon the authorities quoted by him that a compromise can be set aside if it was brought about on account of any fraud praised upon the Court. It seems that the learned subordinate judge did not know that the pleader had no authority to consent to the case being taken up on the 26th November or to act on behalf of or represent the lady in connexion with the compromise petition on the 26th November. He had no vakalatnama authorizing him to act on her behalf in connexion with the compromise. This is a fraud practised upon the Court, for if the Court had known this, it would not have acted upon the compromise and directed the suit to be decreed in terms thereof. The subordinate judge was under the belief that the petition of compromise contained all the terms to which the lady had conserved. This belief was induced on account of the petition having been read out to her at the station when she was in the waiting-room. The lady repudiates the compromise on the ground that she did not catch the words when the petition was read out to her, she being in the waiting room and the petition being read out to her from take platform outside.

There is no investigation or inquiry upon this point and her allegation has been assumed by the Court below to be correct. Assuming her allegation to be true, the subordinate judge was deceived into the belief that the terms of the compromise were fully read out to her and that she had consented to all the terms. This is, therefore, a fraud practised upon the Court.

The case, however, stands upon a much higher footing. Section 151 refers to the inherent power of the Court which it always possesses to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. The present case comes well within this section, and the subordinate judge had power to set aside the order of the 26th November 1924, being illegal and ultra vires, for the reasons already given. The principle has been enunciated by their lordships of the Judicial Committee in Baja Devi Bux Singh v. Habib Shah [1918] 35 All. 331.

The result is that the order of the subordinate judge, dated the 6th July 1925, dismissing the application of the petitioner u/s 151. Civil P.C. should be set aside. His order of the 26th November 1924, directing the suit to be decreed in terms of the compromise and the compromise decree must also be set aside, and the case restored to its original number, to be taken up from the stage at which the compromise was filed and disposed of in accordance with law. This is the only order possible in the circumstances of the case as was pointed out by their Lordships Jenkins, C.J., and Chatterjea, J., in the case of Paban Sardar v. Bhupendra Nath Nag [1916] 43 Cal. 85.

It is accordingly ordered that civil Revision Nos. 322 and 457 of 1925 be allowed with costs throughout hearing fee 10 gold mohurs.

It is regrettable that the parties have not come to terms although attempts were made by this Court and the terms were also almost settled the difference-was very small between the parties. The protracted litigation ever since the death of the husband of the lady in 1914 has been ruinous to both the parties and the lady has been reduced to pauperism. It is hoped that better sense would prevail and the parties would even now settle their dispute.