Bishan Narain, J.:— The relevant facts leading to these present proceedings are these: One Fazl-ul-Rehman is the owner of a three storeyed building situated in Khari Baoli, Delhi. Mithan Lal alleged that in May 1949 he took the entire premises on lease on a monthly rental of Rs. 118/2/- and occupied the same but that he was forcibly dispossessed from different portions of the property by Laiq Ram and also by Murli Dhar and his sons. He filed two separate suits against these persons for possession and for recovery of damages for use and occupation. Both these suits were consolidated in the trial Court, and by judgment dated 31st August 1954 the trial Court decreed possession claimed by Mithan Lal but dismissed his claim for damages. The defendants filed two separate appeals, one in this Court and one in the Court of the District Judge, Delhi. The appeal filed before the District Judge, was transferred to this Court and the two appeals were Regular First Appeals Nos. 115-D of 1954 and 136-D of 1955 respectively and both these appeals were ordered to be heard together. The defendants in both these appeals applied for stay of delivery of possession and it was in Letters Patent Appeals that an interim stay order was passed which remained in force from 25th November 1954 to 23rd May 1956. The parties applied to this Court in both the Regular First Appeals for consent decrees on the ground that the parties had compromised the dispute. This court disposed of both the appeals in accordance with the terms of the compromise on 23rd May 1956. The main term of the agreements is that Mithan Lal let the premises to the defendants on a monthly reutal of Rs. 60/- and Rs. 8/8/- respectively. These facts are not in dispute and they are matters of record.

2. One Ram Dhan made two separate applications to this Court on 4th June 1956 under Order XXII rule 10, Civil Procedure Code, and the present proceedings arise out of these applications. As the facts are common, it will be convenient to decide both these applications by this judgment.

3. The case of Ram Dhan is that on 13th December 1954 Mithan Lal decree-holder had transferred his rights under the decrees under appeal to him by registered documents and that consequently Mithan Lal had no rights left under the decrees and could not compromise the appeals. He further alleged that the parties to the litigation knew of this assignment and the compromise was collusively made by Mithan Lal on one side and Laiq Ram and Murli Dhar etc. on the other side to deprive Ram Dhan of his rights under the transfer deeds. On these allegations Ram Dhan prayed that the compromise be set aside under section 151, Civil Procedure Code, and the petitioner be impleaded in the two appeals as respondent under Order XXII rule 10, Civil Procedure Code. Kapur, J. issued notice on 8th June 1956 and it was accepted on behalf of Mithan Lall on the same day. The petitioner took no steps to get these petitions heard and decided expeditiously and the cases came up for hearing for the first time on 23rd Aoril 1958, i.e after the expiry of about two years, when Falshaw & Mehar Singh, JJ. directed Mithan Lal to appear before them on 7th May 1958 and to make a statement. Mithan Lal filed a written reply to the application of Ram Dhan on 1st May 1958 and supported it with an affidavit. Ram Dhan also applied for examination of three witnesses. Mehar Singh, J. ordered that summons be issued to the witnesses proposed to be examined by Ram Dhan, but stated in the order that whether they would be examined or not on the date fixed would be decided at that time. The statement of Mithan Lal was recorded by this Court on 14th May 1958 as a Court witness and then the cases were adjourned for arguments. No other person was examined.

4. Mithan Lal in his statement denied that he had assigned any of his rights in the decrees to Ram Dhan. He stated that he had signed the three documents, Exhibits C.1, C.2 and C.3 but not as an assignment of the decrees etc. In his written reply he stated that he and Ram Dhan were partners in a business which was carried on in the name of Ram Dhan Mithan Lal since 1950 and that Ram Dhan in spite of his repeated demands had not rendered accounts and had not paid profits due to him. According to Mithan Lal's allegations Ram Dhan agreed to pay Rs. 1,500/- toward partial payment of the profits of the business and these documents were executed merely to evidence this transaction and that these documents were not intended to evidence any transfer of decrees obtained by Mithan Lal against Laiq Ram and Murli Dhar etc.

5. From the above narration of facts, it is clear that the assignment set up by Ram Dhan is denied by Mithan Lal. The case of Ram Dhan is that Mithan Lal had got the appeals disposed of by consent collusively and with a view to defeat his rights by suppressing the fact that he had no interest left in the subject-matter of the appeals. On the other hand Mithan Lal denies the factum of assignment in favour of Ram Dhan, and in his written reply and in his oral statement in this Court he disclosed a plea of fraud and misrepresentation on the part of Ram Dhan.

6. It is conceded by Shri Gurbachan Singh on behalf of Ram Dhan that the application under Order XXII, rule 10, Civil Procedure Code, can be entertained only after the ex parte decrees have been set aside and after the appeals have been restored to their numbers in this Court. This is obviously correct as under Order XXII rule 10, Civil Procedure Code, an assignee can be brought on the record only to continue a suit or appeal but not after the same has been decided or disposed of by a consent decree or after contest. It is well established that when an interest has come or devolved on a person during the pendency of the suit or appeal, then he is bound by the decision even if he is not brought on the record or even if he is not a party to the suit or appeal by name. As observed by Seshagiri Ayyar, J. in Veeraraghava Reddi v. Subba Reddi . I.L.R 43 Mad. 37, 46., at page 46, if the purchaser is not a party to the suit, he will be bound by the litigation which was in its inception contentious whatever may be the process by which the ultimate conclusion is reached, whether by obtaining after active contest a decision by the Judge or by a compromise outside Court and its recognition by the Judge. It is equally well established that mere omission to make an application under Order XXII rule 10, Civil Procedure Code, does not effect the course of a suit or appeal. The provisions of Order XXII, rule 10, Civil Procedure Code, do not compel the assignee or party to a suit or appeal to make an application during the pendency thereof. The provision is merely of enabling character. If no application is made, then the suit or appeal will be continued as heretofore and will be decided between the parties on the record, but the decision will bind the assignee on whom interest in the subject-matter in the litigation has devolved during the pendency of the suit or appeal (T.K Chakrapani Iyer v. Ammalu Amma . A.I.R 1949 Mad. 870.). The Courts are not concerned whether or not the parties to the litigation or the assignee thereof has taken advantage of this enabling provision of Order XXII rule 10, Civil Procedure Code. It is, therefore, obvious that this provision has been enacted mainly to safeguard the interest of an assignee who gets interest in the subject-matter of the suit or appeal. It cannot be gain-said that an assignee so circumstanced should promptly take advantage of this statutory provision, but if he does not do so, then he does so on his own peril and at his own risk.

7. In the present case the alleged assignee did not come on the record of the appeals and the parties in the appeals arrived at a compromise outside Court and got the appeal decided in accordance with the compromise. This compromise, according to Ram Dhan, affects his rights adversely and he is desirous of impeaching it. Obviously, if he is the assignee of the rights involved in the appeals and if the consent decrees have been obtained without his consent, then he has a grievance against which he must have a remedy. The only question involved in these proceedings is whether this remedy is by an application under section 151, Civil Procedure Code, or by a separate suit. Ram Dhan wants the dispute to be decided under section 151, Civil Procedure Code, while Mithan Lal has urged before us that this application is not competent and that the proper remedy of Ram Dhan is to file a regular suit for this purpose.

8. It was strenuously urged before us on behalf of Ram Dhan that the disposal of the appeals on the basis of the compromise amounted to a fraud on this Court and therefore, according to the learned counsel, it is incumbent on this Court to relieve him of the consequences of this fraud, particularly when the effect of such an order will be that the appeals pending in this Court will be revived and will have to be decided on merits. I see no force in this contention. In the present case Ram Dhan was not a party to the appeals when consent decrees were passed therein. Mithan Lal was under no legal or statutory obligation to apply to this Court to implead Ram Dhan, particularly when he does not accept the factum of transfer. As I have already remarked, in the absence of an application under Order XXII, rule 10, Civil Procedure Code, this Court could only decide the appeals between the parties on the record. Therefore, it cannot be said that any fraud was committed on this Court by any of the parties to the litigation when an application was made to dispose of the appeals in accordance with the terms of the compromise. All that can be said by Ram Dhan is that in the circumstances parties to the appeals had colluded to defraud him and that would be a fraud on him and not on this Court. In this connection it must not be forgotten that the factum of the compromise between the parties to the appeals is not challenged by Ram Dhan.

9. It has been repeatedly held by almost all the Courts in India that whenever a party to a litigation desires to avoid a decree, then he must do so by a regular suit and the remedy of an application under section 151, Civil Procedure Code, is not available to him. In a case where a party applied under section 151 to avoid a consent decree on the ground that he had entered into a compromise, but “the whole” instead of “the balance” were interpolated in the terms placed before the Court, it was held by the Calcutta High Court that the only remedy of the aggrieved party was to file a separate suit. Rankin C.J in J.C Galstaun v. Pramathanath Ray . A.I.R 1929 Cal. 470:—

“Now, it appears to me, that, if a party desires to have a consent decree amended or vacated upon the ground that it was fraudulently procured, his proper course, and indeed his only course, is to proceed by separate suit for the purpose. The matter is certainly grave enough to deserve a separate suit. The questions which have to be decided are entirely different from those at issue in the original suit. The relief sought is a very well recognised form of relief appropriate to a suit. In English practice, it is old law that a fresh action is necessary to set aside a consent decree upon the ground of fraud and that such relief is not properly sought in an action of review. * * * If the relief can be properly obtained in a separate suit, it does not appear that there is any justification for invoking section 151 at all.”

10. This decision has been followed in Suresh Chandra Sen v. Jogesh Chandra Sen . A.I.R 1939 Cal. 658.. A similar view has been taken in Laraiti Devi v. Sia Ram . A.I.R 1957 All. 820.. In the Allahabad case a party desired to avoid consent decree on the ground that it had been got fraudulently signed by the son of the opposite side, and the Division Bench held that the consent decree could not be quashed on an application made under section 151, Civil Procedure Code, and that it was open to the aggrieved party to avoid the effect of the decree by a regular suit. It was observed in this judgment that it is not open to any party to invoke the inherent jurisdiction of the Court when he had another remedy open to him but did not pursue it. A similar view was taken by Lokur, J. in Keshav Ramkrishan Bhatt Phadke v. Subba Manga Naik . A.I.R 1939 Bom. 490., following the decision in Yusuf Ismailbhai Abdullabhai Lalji v. Abdullabhai Lalji . I.L.R 56 Bom. 231.. In this judgment the applicant's grievance was that he had never authorised the counsel to present the compromise into Court and that the consent decree made thereupon did not bind him. Lokur, J. held that this dispute could be challenged only in a regular suit. The Patna High Court had also taken the view that a consent decree could be avoided only by a separate suit as such a plea of fraud amounts to a plea of fraud upon a party and an application under section 151, Civil Procedure Code, was not competent: vide Kusum Kumari v. Biseswar Lal Marwari . A.I.R 1935 Pat. 439. and Chutur Prasad Sah v. Mt. Bishuni Kuer . A.I.R 1943 Pat. 13..

11. It is, therefore, clear that it has been repeatedly held that if a party desires to avoid a consent decree on the ground of fraud, then the only remedy is by way of suit and not by an application under section 151, Civil Procedure Code. The present case stands on a much stronger footing. In all these judgments the aggrieved persons were by name parties to the litigation while Ram Dhan in the present case was not a party to the appeals. It is obvious and well settled that Courts cannot be called upon to invoke their inherent jurisdiction in a litigation on the application of a person who is not a party to that litigation. It is only in special cases that the Code of Civil Procedure enables Courts in exercise of their discretion to implead parties who were not originally impleaded as parties. The provision of Order XXII, rule 10, Civil Procedure Code, makes it quite clear that the appeals could proceed in the absence of Ram Dhan even though he was only person interested in the result of the litigation on the side of appellant assuming that the appellant had transferred his rights to Ram Dhan. I am, therefore, of the opinion that Ram Dhan cannot invoke the inherent jurisdiction of this Court under section 151, Civil Procedure Code, to avoid the consent decrees passed in Regular First Appeals No. 115-D of 1954 and 136-D of 1955.

12. There is another way of looking at the matter. It is well settled that a consent decree is only an agreement with super imposition of a Court's order and that it can be invalidated on the same grounds as will invalidate an agreement between the parties: vide Yusuf Ismailbhai Abdullabhai Lalji v. Abdullabhai Lalji. In the present case Ram Dhan impugns the agreement between Mithan Lal and Laiq Ram etc. on the ground of collusion and wishes to avoid the consent decree on the ground of fraud. On the other hand Mithan Lal denies transfer in favour of Ram Dhan and alleges fraud and misrepresentation. Obviously, these pleas cannot be satisfactorily decided in an application under section 151, Civil Procedure Code. These pleas can be more appropriately decided in a regular suit.

13. For these reasons, I am of the opinion that in law and also on ground of convenience Ram Dhan cannot and should not be allowed to get his dispute with Mithan Lal relating to the alleged transfer by the latter decided by means of an application under section 151, Civil Procedure Code. If so advised, he may seek his remedy by a regular suit.

14. It is unfortunate that considerable time has been wasted in the disposal of these miscellaneous applications but Ram Dhan himself is to a certain extent responsible for this delay.

15. Taking all the circumstances into consideration I dismiss these miscellaneous petitions but leave the parties to their own costs.

16. Capoor, J.:—I agree.

Petitions dismissed.