Chatterji, J.:— There was a partition suit in which the plaintiff was the younger brother and defendant 1 the elder brother. Defendants 2 to 4 were the sons of defendant 1 and defendant 5 was the mother of plaintiff and defendant 1. The wife of defendant 1 was also impleaded as defendant 6. Written statements were filed by defendants 1 and 5. Subsequently, on 5th April 1939 a petition of compromise was filed which purported to bear the thumb impression of defendant 5. It was also signed by her pleader through whom she had entered appearance. A decree in terms of the petition of compromise was passed on 6th April 1939. By the terms of the compromise six annas of the family properties was given to the plaintiff and ten annas to defendants 1 to 4. The mother defendant 6 was given a share in a certain village for her maintenance. On 1st July 1940 defendant 5 made an application for setting aside the compromise decree on the ground that she had no knowledge of the compromise, that she did not actually agree to the terms of the compromise and that she did not put her thumb impression on the petition of compromise. The petition purported to have been made under O. 9, R. 13, O. 28, R. 3 and Section 151 of the CPC.
2. This application was opposed by defendant 1 on the ground that it was not maintainable and also that defendant 5 had actually entered into the compromise and signed the petition of compromise. The question of maintainability was first taken up by the learned Subordinate Judge, and by his order dated 20th January 1941 he held that the application was maintainable. Against this order defendant 1 filed an application in revision to this Court (Civil Revision No. 102 of 1941) which was summarily rejected on 24th March 1941. In due course the case was heard on the merits; and by his order dated 27th October 1941 the learned Subordinate Judge allowed the application and set aside the compromise decree and restored the suit to its original number for disposal according to law.
3. Against this order, defendant 1 has filed this application in revision. Mr. N.K Prasad for the petitioner contends that the learned Subordinate Judge had no jurisdiction to entertain the application for setting aside the compromise decree. He argues that the only remedy of defendant 5 was to bring a regular suit to set aside the compromise decree. It is not clear from the order of the learned Subordinate Judge as to whether he treated the application as one under O. 9, R. 13 or O. 23, R. 3 or under Section 151 of the CPC. So far as O. 23, R. 3 is concerned, it is not argued before us by either side that it does apply. Obviously, it has no application. Mr. N.K Prasad suggests that the learned Subordinate Judge actually treated the application as being one under O. 9, R. 13. It is argued that the application was not maintainable under that rule. He relies on the decision in 19 C.W.N 118.1 The learned Subordinate Judge on the other hand relied on 20 I.C 67,2 3 C.L.J 1583 and A.I.R 1918 Cal 3224. The last two of these latter three cases dealt with the question whether an application under O. 9, R. 13 would lie to set aside a compromise decree. Mr. D.N Varma for the opposite party, however, did not try to support this part of the judgment of the learned Subordinate Judge. He argues that it is quite immaterial whether the application actually came under O. 9, R. 13 or not. In this view it is unnecessary for us to express any opinion on the point. Mr. D.N Varma, however, argues that the present application in revision is not maintainable because a previous application against the order of the Subordinate Judge dated 20th January 1941 was rejected by this Court. It is further argued that the present case is covered by the authority of the decision of this Court in 2 Pat. 731,5 in which Das and Kulwant Sahay JJ. held:
A Court is not competent, either in review or under its inherent powers, to set aside a compromise decree on the ground that the consent of the parties to the compromise was obtained by fraud. The only remedy of the injured party is to institute a suit to set aside the decree on the ground of fraud. But where it is found that the aggrieved party had not in fact consented to the compromise the Court has inherent power to set aside a decree based on the compromise.
4. Das, J. who delivered the judgment observed:
A distinction has been drawn in the cases of the [Indian Courts between a fraud practised upon a party land a fraud practised upon the Court. It has been laid down that where the question is whether there was a consent in fact, there is power in the Court to investigate the matter in a properly constituted application and to set aside the decree if it is satisfied, that a party never in fact consented to it but that the Court was induced to pass the decree on the fraudulent representation made to it that the party had consented to it but that where there is a 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 is 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.
5. In the present case the learned Subordinate Judge has found as a fact that defendant 5 was not a party to the compromise and that she did not enter into such a compromise. It is therefore argued that this case falls within the principle laid down in the case just cited. Mr. N.K Prasad seeks to distinguish that case on the ground that there the pleader who signed the compromise on behalf of the aggrieved party was not actually his pleader, whereas in the present case the petition of compromise was signed on behalf of defendant 5 by her pleader through whom she had already entered appearance. But on the finding of the learned Subordinate Judge that defendant 5 did not in fact give her consent to the compromise, hardly any distinction can be made on the ground suggested. It is true that recourse cannot be had to the provisions of Section 151 of the CPC where there is other remedy available to the aggrieved party; but as at present advised, I do not feel disposed to differ from the decision in 2 Pat. 731, and refer the matter to a Full Bench. That case was subsequently followed by a Division Bench of this Court in 13 Pat. 165.6
6. I also think that there is some substance in the other objection taken by Mr. D.N Varma. The question as to the maintainability of the application was decided by the Subordinate Judge by his order dated 20th January 1941. Against that order defendant 1 came up in revision to this Court, and in that case it appears that one of the grounds taken was that “the Court below should have held that the consent decree could be only set aside by a regular suit.” This is exactly the point which is now being raised. The previous application in revision having been rejected, I do not think that it would be proper to interfere in the exercise of our discretionary power under Section 115 of the CPC, on the present application. On these grounds, I would dismiss the application with costs.
Rowland, J.:— I agree.
G.N/R.K
7. Application dismissed.
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