K.B. Srivastava, J.
1. This writ petition under Article 226 of the Constitution, raises a point of law.
2. The dispute between the petitioners Chandra Shekhar. Sheo Shanker and Hari Shanker and the respondent Beni Madho and Harakh Narain and Shrimati Dhanpati and her minor sons Sheo Kumar, Om Prakash, Gyan Pra-kash, Anil Kumar and Rakesh Kumar related to the plots comprised in Khatas 3, 25 and 65, situate in Punpur, hamlet of village Kheda, in the district of Sultan-pur. These Khatas comprised several plots including plots Nos. 25, 37 and 1145. All the plots stood recorded in the name of Beni Madho, opposite party No. 4. During the consolidation operations, the petitioners filed an objection before the Assistant Consolidation Officer, opposite party No. 3. Similar objections were filed by Harakh Narain, opposite party No. 5 and by Dhanpati on her own behalf and on behalf of her five minor sons. Dhanpati and her minor sons have not been impleaded as parties to this writ petition. Each objector claimed rights in the plots comprised in the said two Khatas. They entered into a compromise (Annexure 1) on January 21, 1967 and filed and verified the same before the Assistant Consolidation Officer. An order (Annexure 2), was passed by the said officer on the basis of the said compromise, on the same date. Not satisfied with this compromise to which Beni Madho was allegedly a party, he filed an appeal which was dismissed by the Assistant Settlement Officer, Consolidation on three grounds, namely, (1) that Beni Madho had not impleaded Dhanpati and her five minor sons who were parties to the compromise and which, therefore, could not be set aside in their absence from the array of parties, (2) that Beni Madho entered into the compromise and could not be permitted to go back upon that and (3) that the appeal was also barred by limitation. Beni Madho then filed a revision before the Director and this was allowed, the appellate order was set aside, the compromise was also set aside as a whole, and the case was remanded to the Consolidation Officer for inviting pleadings from each of theparties, framing issues, allowing opportunity to them to adduce evidence, and deciding the matter on merits by ignoring the compromise. It is in these circumstances that the present writ petition has been filed for the issue of a writ of certiorari quashing the order passed by the Director of Consolidation.
3. The first contention of the learned counsel for the petitioners is that the order of the Assistant Consolidation Officer founded on the compromise of the parties, was not an appealable or revisable order and, therefore, both the appeal and the revision were not competent. He placed reliance upon Sub-section (3) of Section 96, Code of Civil Procedure which provides that no appeal shall lie from a decree passed by the Court with the consent of the parties. It was pointed to him that Section 96 has no application to cases under the U. P. Consolidation of Holdings Act and the argument then advanced was that the provisions of Section 96 can in that case be applied by analogy. There appears to be no force in this contention inasmuch as even consent decrees have been made appealable under Section 11, U. P. Consolidation of Holdings Act. This section says that any party to the proceedings under Section 9-A aggrieved by an order of the Assistant Consolidation Officer may, within 21 days of the date of the order, file an appeal before the Settlement Officer, Consolidation. An Order passed on the compromise is an order under Section 9-A and, therefore there can be no escape from the conclusion that such an order was appealable.
4. The second contention of the learned counsel for the petitioners is that a consent decree cannot be set aside in appeal, revision or review and besides it can be set aside only by a regular suit in the competent Civil Court. Sub-section (3) of Section 96, of the Code of Civil Procedure in so far as it bars an appeal from consent decrees, gives effect to the principle that a judgment by consent acts as an estoppel. In the case of a consent decree, the Judicial Committee refused to entertain an appeal or to consider the sufficiency or otherwise of the consent as the decree could only be set aside by substantive proceedings appropriate to that particular remedy. See Zahirul Said v. Lachhmi Narayan . A consent decree can be set aside on any ground which would invalidate an agreement, such as misrepresentation fraud or mistake. This can only be done by a suit, and a consent decree cannot be set aside by an appeal, or a review, or by a rule obtained on a motion. See Bibee Solomon v. Abdool Azeez, (1881) ILR 6 Cal 687; Mirali v. Rehmo-obhoy, (1891) ILR 15 Bom 594; Nathu Lal v. Raghubir Singh : AIR1926All50 and Yusuf Ismail Bhai v. Abdulla-bhai Lalji AIR 1932 Bom 615. These rulings, however, have no application to the facts of the case. In the instant case, the law permits an appeal to be filed against a consent decree and if that decree is unlawful, it can be set aside by the Settlement Officer in the appeal; and if he does not set it aside, a revision would be competent before the Deputy Director or Director. This ground for invalidity of the order of the Director, therefore, is not valid.
5. The third contention of the learned counsel for the petitioners is to the effect that the compromise was signed by Beni Madho. he verified it before the Assistant Consolidation Officer, the Assistant Consolidation Officer passed a separate order on the basis of the compromise and Beni Madho signed the order-sheet also, and, therefore, it was his duty to raise the plea of fraud and misrepresentation and also to prove it and unless it was so proved, the compromise decree would be binding on him. Admittedly, Beni Madho raised the invalidity of the compromise decree on the ground of misrepresentation and fraud. He filed an affidavit in support of these grounds before the Settlement Officer, Consolidation and his allegations were met by counter-affidavit filed by the petitioners. The Director of Consolidation looked to the original compromise and held that some interpolation appeared to have been made therein. He also held that the Settlement Officer should have condoned the delay in filing the appeal. He further observed that Dhanpati and her minor sons will not be prejudiced if the compromise was set aside, even if they were not parties to the revision, because they will get an opportunity to have their claim decided on merit after the case was remanded to the Consolidation Officer. It is this matter which is being argued with some vehemence and it has been contended that the Director has erred in law in coming to that conclusion. It appears that Beni Madho prayed for setting aside the entire compromise decree and the compromise when he filed his appeal. However, during the course of argument, he gave up this claim with respect to all plots except plots 25, 37 and 1145. These plots had been allotted to the petitioners alone by the compromise and. therefore, undoubtedly, Dhanpati and her minor sons were not interested in so far as these plots were concerned. However, they were certainly interested that the compromise in so far as it concerned their own plots was not set aside. This is, however, what the Director has done by setting it aside in respect of their plots also and without Riving them the right to repudiate the claim of Beni Madho that the compromise was the result of fraud, misrepresentation or interpolation. It appears to me, therefore, that the order of the Director of Consolidation must be set aside. It will not be possible to hold that the compromise is good, that is to say, not vitiated by fraud, misrepresentation or interpolation in so far as Dhanpati and her minor sons are concerned, but it is bad as regards the petitioners because of the said infirmities. The order passed by the Directorate is, therefore, quashed. He shall issue notice to Dhanpati and her five minor sons also and allow each party to adduce evidence, oral or documentary, or evidence furnished by affidavits, as they may desire and then decide the question whether the compromise should be confirmed or set aside.
6. The writ petition is allowed in terms aforementioned. In the circumstances of the case the parties shall bear their own costs.