Karamat Husain and Chamier, JJ.
1. This appeal arises out of a suit brought by the appellant to set aside a decree for partition of a joint family property which was passed upon a compromise between the parties. The ground of suit is that the consent of the appellant to the compromise was obtained by undue influence exerted on him by the defendant respondent, Ramjas Chaudhri. The suit has been dismissed by the court below on the ground that no such suit is maintainable. The Subordinate Judge was of opinion that a decree could not be set aside by suit except on the ground of fraud or collusion. In the course of his judgment he refers to Section 44 of the Evidence Act. But that Section does not purport to enumerate the grounds on which a decree can be attacked by a separate suit. There are cases no doubt which suggest that where a decree is attacked by a party on any ground other than that of fraud, he should proceed by way of motion or application for review of judgment. But all the recent authorities are to the effect that whether or not a party may proceed by way of motion or application for review of judgment he may proceed by suit. In the case of The Huddersfield Banking Co. Limited v. Henry Lister and Son Limited (1895) L.R. 2 Ch. 278 a consent order had been made for the sale of some power-looms. The Banking Company afterwards ascertained that the power-looms had been affixed to certain mills so as to become part of the property comprised in a mortgage security. At the time of the consent order it was supposed that the machinery was not affixed to the mills and therefore was not part of the security. The Company brought an action to have the order set aside. The action was resisted on the ground that the arrangement having merged in an order of the court could not be set aside. Vaughan Williams, J., said:--'The real truth of the matter is that order is a mere creature of the agreement, and to say that the court can set aside the agreement; and it not disputed that this could be done if a common mistake were proved, but that it cannot set aside an order which is the creature of that agreement seems to me to be giving the branch an existence which is independent of the tree. Under the circumstances I have come to the conclusion that I can set aside the order and give effect to what are the true rights of the parties.' His views were affirmed by the Court of Appeal. Lindley, L.J., said:--'I have not the slightest doubt that a consent order can be impeached not only on the ground of fraud but on any ground which invalidates the agreement which it expresses in a more formal way than usual. To my mind the only question is whether the agreement on which the consent order was based can be invalidated or not. Of course if that agreement cannot be invalidated, the consent order is good. If it can be, the consent order is bad.' Lopez and Kay, L.JJ., expressed themselves to the same effect. The decision in that case was followed in Musammat Gulab Kuar v. Badshah Bahadur(1909) 13 C.W.N. 1197 and in Sarbesh Chandra Basu v. Hari Dayal Singh (1910) 14 C.W.N. 451. The judgment of the court in the last mentioned case contains an exhaustive review of the authorities both as to the grounds on which, a decree obtained by consent or upon a compromise can be attacked and as to the procedure to be adopted in such cases. In our opinion the decision of the court below is wrong. We allow the appeal, set aside the decree of the Subordinate Judge, and remand the suit in order that it may be restored to the file of pending cases and disposed of according to law.