1. The plaintiff in the three suits out of which these appeals arise was one Vishwanath Vaman Thakur. In the suit out of which second appeal No. 803 of 1943 arises the defendant was Motilal Shivnarayan. and in the other two suits the defendant was Bhikchand Kamkaran, the father of the respondent, who died pending the suits. Bhikchand Bamkaran obtained two money decrees against the plaintiff in the High Court in summary suits Nos. 1741 and 2057 of 1936 and Motilal Shivnarayan obtained a money decree against him in summary suit No. 105 of 1937. All the three decrees were passed on the consent given by the plaintiff Vishwanath Thakur in those suits. He filed these three suits against the decree-holders to have the decrees set aside on the ground of fraud and misrepresentation. Both the Courts below have held that there was no fraud or misrepresentation by the decree-holders in obtaining the consent which was produced in the three summary suits. In all the three suits the documents giving consent to the decree, duly signed by Vishwanath Thakur, the plaintiff in these suits and the defendant in those suits, were produced, and acting upon them the Court passed the decrees in terms of the consent. But in the suit of Motilal Shivnarayan the consent paper had been produced in Court by Mr. Thakore, solicitor, and in the course of Mr. Thakore's examination it was discovered that he had not been engaged by the plaintiff to appear in that suit or to present the consent paper. On that ground both the Courts below held that the consent was not properly placed before the Court and therefore the decree passed on the strength of that consent could not be upheld. On this ground in suit No. 150 of 1940 the decree in summary suit No. 105 of 1937 was set aside and the plaintiff's claim was decreed. But the other two suits were dismissed. From the decree in suit No. 150 of 1940 which was confirmed in appeal, Motilal Shivnarayan, the defendant, has presented appeal No, 803 of 1943, and the other two appeals are presented by the plaintiff Vishwanath Thakur.
2. There is no substance in the appeals filed by the plaintiff Vishwanath Thakur. The basis of the suits was fraud and misrepresentation alleged to have been committed by Bhikhand Kamkaran in obtaining his decrees in the two summary suits in the High Court. The plaintiff has not been able to prove that any fraud was practised on him or that any misrepresentation was made to him. Both the Courts below have gone into the merits of the two summary suits presented by Bhikchand in the High Court and come to the conclusion that the claim was good and that the plaintiff Vishwanath Thakur had willingly and voluntarily given his consent to have the decrees passed against him. It is not necessary in these suits to go into the merits of Bhikchand's claim in the two summary suits. Even in those suits the merits of his claim were not considered and the decrees were passed merely on the consent given by Vishwanath Thakur, the defendant in those suits. The only point to be considered is whether the decrees were vitiated by any fraud or misrepresentation on the part of Bhikchand, and both the Courts have given a concurrent finding that the plaintiff has failed to prove the alleged fraud and misrepresentation. That is a finding of fact which has to be accepted in second appeal. There is no other ground on which Bhikchand's decrees can be set aside.
3. The two appeals filed by the plaintiff Vishwanath must, therefore, be dismissed with costs.
4. As regards appeal No. 803 of 1943, both the Courts below have given the same finding regarding the plaintiff's allegation of fraud and misrepresentation. The burden of proving such fraud or misrepresentation lay heavily upon the plaintiff and he has not discharged it. That finding is binding in second appeal. But both the Courts below have found that although the document containing the plaintiff's consent was explained to him and signed by him in the presence of his pleader Mr. Dayama, yet Mr. Thakore who produced it in Court had no authority to do so and therefore the Court should not have acted on such document of consent which was not admissible in evidence for want of proper presentation. The document of consent, which is exhibit 77, is written in English, is signed by the plaintiff Vishwanath and bears the following endorsement signed by the plaintiff's pleader Dayama:
Interpreted by me to Vishwanath Vaman Thakur who has signed in my presence and whom 1 personally know.
Mr. Dayama has been examined as a witness and he says that he explained the contents of exhibit 77 to the plaintiff and the plaintiff, knowing fully well the terms of the decree to which he was giving his consent, signed the document in his presence. His statement has been believed and the only flaw is that the document was produced in Court by an unauthorised person and relying upon the ruling in Kusodhaj Bhukta v. Braja Mohan Bhukta I.L.R (1915) Cal. 217 the learned appellate Judge thought this to be a sufficient ground for setting aside the decree.
5. But the ruling in Kusodhaj Bhukta v. Braja Mohan Bhukta does not lay down any such proposition of law. It says that a decree can be set aside by a suit on the ground of fraud, if of the required character, but a suit does not lie to set aside a decree in a previous suit on the ground that the Judge in passing that decree had made a mistake. (It may be that the Court made a mistake in believing that Mr. Thakore had an authority from the plaintiff to appear on his behalf and present the document of consent. If the Court was wrong in allowing the document of consent produced by Mr. Thakore to go on record, the plaintiff should have approached that Court to re-open the case and either decide it on merits or decide whether the consent had been properly given by the plaintiff or not. As observed by Jenkins C. J. in Kusadhaj Bhukta v. Braja Mohan Bhukta (p. 222):
If we encourage the idea that the alleged mistake of a Judge is to furnish a disappointed litigant with a fresh starting point for keeping his opponent in Court, then this misfortune would be gravely increased to the public detriment... .No instance has been brought to our notice where a suit to set aside or rectify a decree in a previous suit has succeeded on the ground that the Judge was mistaken though his decree accurately expressed his intention.
6. The ground alleged by the plaintiff in his plaint for setting aside the decree was that there was fraud and misrepresentation and that he had not given his consent. All these three grounds have failed. It has been held that there was no fraud or misrepresentation and it is proved by the evidence of the plaintiff's pleader Mr. Dayama that the plaintiff knowingly and willingly gave his consent by making his signature on exhibit 77. The decree which was passed in favour of the then plaintiff cannot be set aside on the ground of the technical defect that exhibit 77 was placed before the Court by one who had not been duly authorised to do so. That ground was not specially set out in the plaint and is not a valid ground to give rise to a cause of action for a separate suit to have the decree set aside.
7. I, therefore, allow the appeal No. 803 of 1943, set, aside the decree of the lower appellate Court and dismiss the plaintiff's suit with costs throughout.
8. Appeals Nos. 804 and 805 of 1943 are dismissed with costs.