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Bindeshwari Pd. Chaudhary v. Debendra Pd. Singh And Others
Structured Summary of the Opinion (R.K. Choudhary, J.)
Factual and Procedural Background
This matter concerns Miscellaneous Appeal No. 251 of 1955 and Civil Revision No. 998 of 1955, both brought by one of the judgment-debtors, Bindeshwari Pd. Choudhary, against an order of the Subordinate Judge, Darbhanga, which set aside an earlier order dated 30 July 1953 recording a compromise in Title Partition Suit No. 218 of 1912. The underlying decree for mesne profits had been obtained by Lachmi Narain Ojha against several defendants including the appellant and his uncle Ramashray Pd. Chaudhary. A Pleader Commissioner determined mesne profits and a decree for Rs. 38,320 was passed against the appellant and his uncle. In 1944 Bhola Singh purportedly purchased that decree for Rs. 9,000 and was substituted for the original plaintiff. Bhola Singh died 17 February 1953 and his son Debendra Pd. Singh and widow Musammat Asharfi Devi were substituted on 17 March 1953.
On 25 July 1953 a compromise petition was filed withdrawing the entire claim for mesne profits against the appellant and his uncle; the compromise was supported in court by the evidence of Rambilas Singh and recorded by order dated 30 July 1953. The substituted decree-holders later alleged they never consented to the compromise, learned of it on 2 October 1953, and on 5 October 1953 applied under Section 151 of the Civil Procedure Code (CPC) to set aside the order recording the compromise and to restore the case to the original file. The Subordinate Judge, after examining evidence, found the compromise to be collusive and fraudulent, found the signatures forged, set aside the order of 30 July 1953, and ordered the mesne profits proceeding to continue against the appellant and his uncle.
The appellant contested those findings and challenged the Subordinate Judge's order by way of the miscellaneous appeal and the precautionary civil revision. Both matters were heard together and are governed by this judgment.
Legal Issues Presented
- Whether an order setting aside an earlier order recording a compromise, when passed under the court's inherent jurisdiction (Section 151 CPC), is appealable to the High Court under Order 43, Rule 1(m) of the CPC as an order refusing to record a compromise.
- Whether the Subordinate Judge was justified in setting aside the order recording the compromise on the ground of fraud and forgery, that is, whether the findings of collusion and forged signatures were supportable on the record.
- Whether the High Court should exercise revisional jurisdiction to interfere with the Subordinate Judge's factual findings in the absence of a jurisdictional error.
Arguments of the Parties
Appellant's Arguments
- The appellant contended that the decree had in fact been purchased by his uncle Ramashray Pd. Chaudhary (in the name of Bhola Singh) and that the compromise was brought about at his uncle's instance and was not fraudulent or collusive.
- The appellant argued that the Subordinate Judge's order setting aside the order recording the compromise and restoring the proceeding to the original file substantially amounted to an order refusing to record the compromise; therefore, an appeal lay under Order 43, Rule 1(m) of the CPC. He relied on Sheosagar Singh v. Sitaram Kumhar (AIR 1952 Pat 48) in support of that submission.
- The appellant sought interference under the High Court's revisional jurisdiction (hence filing Civil Revision No. 998 of 1955) if appeal was not maintainable.
Respondents' (Decree-holders') Arguments
- The respondents submitted a preliminary objection that no appeal lay against the order in question because it was passed under Section 151 CPC, and orders under Section 151 are not appealable.
- They asserted that the compromise was obtained fraudulently and in collusion with Rambilas Singh, and that the signatures on the compromise petition were forged; accordingly, the Subordinate Judge correctly set aside the order under his inherent powers.
- Regarding revisional jurisdiction, the respondents contended that the matter involved pure questions of fact and did not disclose any error of jurisdiction to justify interference by the High Court in revision.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Sheosagar Singh v. Sitaram Kumhar, AIR 1952 Pat 48 | Where fraud has been practised upon a party and the court has been misled into passing orders it otherwise would not have passed, it is a fraud upon the court and the court, under its inherent powers, is entitled (and must) set aside any such orders. | The court acknowledged the principle that fraud on the court permits setting aside an order under inherent powers, but disagreed with the view (expressed by C.P. Sinha, J. in that decision) that the order under Section 151 which set aside a recorded compromise and rejected the petition was appealable. The present court treated any part of the earlier order rejecting the petition as surplusage and held the Section 151 order not appealable. |
| Sadho Saran Rai v. Anant Rai, ILR 2 Pat 731 : AIR 1923 Pat 483 | Affirmed the principle that a court may set aside orders obtained by fraud under its inherent jurisdiction. | The court relied on this earlier decision as supporting the Subordinate Judge's exercise of inherent jurisdiction to set aside the compromise recording when fraud on the court was found. |
| Chulur Pd. Sah v. Mt. Bishuni Kuer, AIR 1943 Pat 13 | Similar earlier authority recognizing the court's power to set aside orders obtained by fraud. | The court cited this decision as an additional precedent aligning with the view that fraud upon the court justifies setting aside the recorded compromise under inherent powers. |
Court's Reasoning and Analysis
The court's analysis proceeded in two main parts: (A) the question of appealability of the Subordinate Judge's order, and (B) the merits (and the revisional challenge).
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Appealability (preliminary objection)
The court first addressed the respondents' objection that no appeal lay because the impugned order was passed under Section 151 of the CPC (the court's inherent powers), and orders under Section 151 are not appealable. The appellant countered that the effect of the order was to refuse to record the compromise and hence was appealable under Order 43, Rule 1(m) read with Order 23, Rule 3 of the CPC (which deals with recording an agreement or compromise when proved to the court's satisfaction).
The court analyzed Order 43, Rule 1(m) and Order 23, Rule 3 together and concluded that those provisions make appealable an order recording or refusing to record a compromise at the time when the question of recording/refusing to record is actually determined after filing of a compromise petition. They do not provide for an appeal against a later order which sets aside a previously-recorded compromise under Section 151. The court emphasized that there is no provision in Order 23, Rule 3 for an order of the character which is made only under Section 151 (i.e., an order setting aside a previously-recorded compromise). Therefore, such an order remains an order under Section 151 and is not appealable.
The court considered the Bench decision Sheosagar Singh v. Sitaram Kumhar (AIR 1952 Pat 48) relied on by the appellant. It noted that in that case C.P. Sinha, J., treated the latter portion of an order which rejected a compromise petition as bringing the order within the appeal provision, but Sarjoo Prosad, J. had doubted the competency of the appeal. In the present opinion the judge expressed inability to agree with C.P. Sinha, J.'s view, describing any further direction refusing to record the compromise in the Section 151 order as surplusage that could not confer a right of appeal where none otherwise existed.
Conclusion on appealability: the court held the preliminary objection must succeed — the appeal was not maintainable because the impugned order was an order under Section 151 CPC and not appealable under Order 43, Rule 1(m).
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Revisional jurisdiction and merits
The appellant also urged interference under the High Court's revisional jurisdiction (hence the civil revision). The respondents countered that the case turned on findings of fact and did not disclose any jurisdictional error warranting revision.
The court agreed with the respondents: the matter involved primarily factual determinations (e.g., whether fraud and collusion took place, whether signatures were forged, who had really purchased the decree), and no error of jurisdiction was shown. The court indicated that even assuming an appeal had lain, there was no merit in it because the Subordinate Judge's findings on the evidence were correct.
The opinion notes that the judge discussed the evidence (the detailed discussion is summarized in the text) and concluded the Subordinate Judge's findings were supportable. Chief Justice Ramaswami agreed with that conclusion.
Holding and Implications
Holding: Appeal and Civil Revision dismissed.
Direct consequences for the parties:
- The Subordinate Judge's order setting aside the order dated 30 July 1953 which recorded the compromise is upheld; the mesne profits proceedings against the appellant and his uncle were ordered to proceed.
- The appellant's miscellaneous appeal and civil revision were dismissed; the appellant was not permitted to challenge the Section 151 order by appeal and no jurisdictional error was found to justify revision.
Broader implications: The opinion principally reaffirms that a court may set aside orders obtained by fraud under its inherent jurisdiction (Section 151 CPC), and that an order passed under Section 151 to set aside a previously-recorded compromise is not itself appealable under Order 43, Rule 1(m) — the decision rejects reliance on portions of prior authority that would treat a Section 151 order's surplus refusal to record as creating appealability. The opinion does not purport to establish any new principle beyond these applications to the facts of this case.
The formal disposition recorded in the opinion: "Appeal and revision dismissed." (Ramaswami, C.J. agreeing.)
R.K Choudhary, J.:— Miscellaneous Appeal No. 251 of 1955 has been presented by one of the judgment-debtors, namely, Bindeshwari Pd. Choudhary, against an order of the Subordinate Judge, Darbhanga, setting aside the order dated the 30th of July, 1953, recording a compromise. Civil Revision No. 998 of 1955 has been filed by the same judgment-debtor against the same order by way of precaution. Both of them have been heard together and this judgment will govern them both.
2. The events leading to the presentation of the appeal and the civil revision application, stated shortly, are these. One Lachmi Narain Ojha obtained a decree for mesne profits in Title Partition Suit No. 218 of 1912 against some of the defendants first party of that suit including the appellant and his uncle Ramashray Pd. Chaudhary. A Pleader Commissioner was appointed for determination of the mesne profits, and ultimately a decree was passed for a sum of Rs. 38320 against the appellant and his uncle. The decree for mesne profits, however, was, in the year, 1944, purchased by one Bhola Singh for a sum of Rs. 9000, and he was substituted in place of the original plaintiff Lachmi Narain Ojha. Subsequently, Bhola Singh died on the 17th of February, 1953, and his son Debendra Pd. Singh and widow. Musammat Asharfi Devi, respondents first party, were substituted in his place by order dated the 17th of March, 1953. According to the case of these respondents, as respondent No. 1 was a student of the Chapra College and respondent No. 2 was an illiterate Pardanashin lady they entrusted the pairwi of the case to one Rambilas Singh, a cousin of respondent No. 1.
3. It appears that on the 25th of July, 1953, a compromise petition was filed in court according to which the entire claim for mesne profits as against the appellant and his uncle was withdrawn by the respondents first party. In support of the compromise the above named Rambilas Singh gave his evidence also in court and the compromise was directed to be recorded by order dated the 30th of July, 1953. The case of the respondents first party is that they never entered into any compromise and had no knowledge at all of the filing of the same.
4. According to them, they came to know of this compromise on the 2nd of October, 1953, when respondent No. 1 was informed by one Mahendra Narain Singh (A.W 3) that the judgment-debtors had fraudulently and collusively got a compromise petition filed by virtue of which the entire claim was withdrawn. On further enquiry, it is alleged, they came to know as to how the compromise was filed and got recorded by the judgment-debtors fraudulently and in collusion with the above named Rambilas Singh. They then made an application on the 5th of October, 1953, under Section 151 of the CPC for setting aside the order recording the above compromise and for restoring the case to the original file, and Miscellaneous Case No. 104 of 1953 was started on that application.
5. The appellant Bindeshwari Pd. Choudhary contested the case and objected to the setting aside of the order recording the compromise. His uncle Ramashray Pd. Chaudhary also filed an application supporting the compromise but he did not make any further contest. The case of the appellant was that the decree for mesne profits was purchased really by his uncle Ramashray Pd. Choudhary in the farzi name of Bhola Singh and that the compromise was brought about at his instance and it was not fraudulent or collusive. The learned Subordinate judge, after considering the evidence on the record adduced by the parties, came to the conclusion that Bhola Singh was the real purchaser of the decree for mesne profits and the compromise dated the 25th of July, 1953, was collusive and fraudulent and was not entered into by the respondents first party-decree-holders.
6. He also came to the conclusion that the signatures of the aforesaid decree-holders were forged in the compromise petition and the same was brought into existence and filed in court in collusion with Ram Bilas Singh. In view of the above findings, he passed an order setting aside the order dated the 30th of July, 1953, by which the aforesaid compromise had been directed to be recorded, and directed that the proceeding for mesne profits as against the appellant and his uncle shall proceed. Being thus aggrieved, the appellant has presented the above appeal and has also filed a civil revision application by way of precaution as already stated.
7. A preliminary objection has been taken by Mr. De appearing for the decree-holders-respondents first party that no appeal lay against the order in question. He has put forward an argument that the order setting aside the order recording the compromise was passed under Section 151 of the CPC and no appeal lay against such an order. On behalf of the appellant, however, it has been contended that an order setting aside the order recording the compromise and restoring the proceeding to its original file substantially amounted to an order refusing to record the compromise and an appeal lay under O. 43, R. 1(m) of the CPC.
8. In support of this contention reliance has been placed on a decision of this Court in Sheosagar Singh v. Sitaram Kumhar, AIR 1952 Pat 48 (A). It is not disputed in this case that the order under appeal was passed by the court under its inherent jurisdiction under Section 151 of the CPC. The very case on which reliance has been placed on behalf of the appellant has laid down that if fraud has been committed upon the party and as a result of that fraud the court has been misled into passing certain orders which otherwise it would not have passed, then it is a fraud upon the court itself and that in such case, under its inherent powers, the court is not only entitled to, but it must, set aside any order or orders which may have been passed by it upon a false representation.
9. A similar view has been taken in earlier decisions of this Court in Sadho Saran Rai v. Anant Rai*, ILR 2 Pat 731 : (AIR 1923 Pat 483) (B), and Chulur Pd. Sah v. Mt. Bishuni Kuer, AIR 1943 Pat 13 (C). On the finding of the court below, therefore, fraud was practised on the court in obtaining an order recording the compromise and the learned Subordinate Judge was, therefore, perfectly justified in setting aside the same under his inherent powers. It is also not disputed before us that no appeal lies against an order passed under Section 151 of the CPC.
10. The contention, however, is that where the effect of the order passed under inherent jurisdiction of the Court is to pass an order which is appealable under the provisions of the Code, then an appeal lies against that order, and it has, therefore, been argued that since the effect of the order setting aside the order recording the compromise is to refuse the recording of the compromise, an appeal lies to this Court under O. 43, R. 1(m) of the CPC. In my opinion, the contention has no substance. Order 43, R. 1(m) provides that an appeal shall lie from an order under R. 3 of O. 23 recording or refusing to record an agreement, compromise or satisfaction.
11. Order 23, R. 3 states that 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.
12. Reading the above two provisions together, it appears to me that an appeal lies against an order recording or refusing to record a compromise at the time when the question of recording or refusing to record the same has to be determined alter the filing of the compromise petition. They do not envisage that an appeal will lie against an order passed subsequently setting aside the order recording the compromise. The reason is obvious that there is no provision under R. 3 of O. 23 for such an order which has to be passed only under S. 151.
13. No doubt, in AIR 1952 Pat 48 (A), which is a Bench decision of this Court, C.P Sinha, J. who gave the judgment in the same, held that where the effect of the order under S. 151 is that the petition to record a compromise is rejected, the order would be appealable under O. 43, R. 1(m). Sarjoo Prosad, J. (as he then was), in his order of concurrence, however, doubted the competency of the appeal. In that case it appears that on the facts and circumstances similar to those of the present case the court below passed an order under Section 151 of the CPC setting aside the order recording the compromise and further ordered that the petition recording the compromise be rejected.
14. C.P Sinha, J. relying on the latter portion of the order rejecting the compromise petition, held that the order came within the purview of O. 23, R. 3 of the Code and was, therefore, appealable. With great respect to the learned Judge, I am unable to agree with the view taken by him. The order passed by the court below was really an order under Section 151 of the CPC setting aside the order recording the compromise and restoring the case to its original file. Its further order refusing to record the compromise was only a surplusage.
15. That, however, could not give a right to the aggrieved party to come up in appeal. An order under S. 151 is nothing else but an order under that section and is not appealable. In that view of the matter, the preliminary objection succeeds and it is held that the appeal is not maintainable.
16. On behalf of the appellant it has then been contended that the Court should interfere with the order in question under its revisional jurisdiction for which purpose lie has filed the civil revision application. On behalf of the respondents, however, it has been submitted that the question involved in this case is a pure question of fact and there is no error of jurisdiction so as to call for an interference by this Court under its revisional jurisdiction. In my opinion, the contention of the respondents is well founded and must be accepted. Assuming, however, that an appeal lay against the order in question, there appears to be no merit in the appeal.
(His Lordship discussed the evidence and held that the findings arrived at by the Subordinate Judge were correct and dismissed the appeal and revision application, Ramaswami, C.J agreeing.)
V.R.B
17. Appeal and revision dismissed.
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