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B. Dwarkadhish Prasad Singh Vs. Maharaja Keshava Prasad Singh - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1925All266; 85Ind.Cas.557
AppellantB. Dwarkadhish Prasad Singh
RespondentMaharaja Keshava Prasad Singh
Excerpt:
- - the document, therefore, on those allegations was a voidable document and was good so long as it had not been avoided. at the time when the compromise was filed before the learned judge he was perfectly justified in passing a decree in terms of it......on that data ha did not appear but big counsel, mr. sultan ahmad, appeared and assured the learned judge that he had bean personally instructed by his client to press the application. acting on this assurance of the learned counsel and the affidavit before him, the learned judge held that the suit had been properly adjusted and ordered it be decreed in the terms of the compromise. a decree was accordingly drawn up.3. subsequently the plaintiff applied to the learned judge to set aside that compromise decree. the application did not state whether it was made under section 151, c.p.c. or under order 47 of the code. no express allegations of fraud were contained in the affidavit filed in support of the application, but there were allegations of undue influence, coercion, criminal.....
Judgment:

1. This appeal arises under the following circumstances.

2. An original suit pending in the Court of the Subordinate Judge, Benares, was transferred to this Court to be tried originally. It was pending before Mr. Justice Piggott. An application was filed in the case purporting to be a compromise between the parties under which the suit was to be withdrawn under certain circumstances. Mr. Justice Piggott ordered that the plaintiff should appear in person and fixed a data for his appearance. On that data ha did not appear but big Counsel, Mr. Sultan Ahmad, appeared and assured the learned Judge that he had bean personally instructed by his client to press the application. Acting on this assurance of the learned Counsel and the affidavit before him, the learned Judge held that the suit had been properly adjusted and ordered it be decreed in the terms of the compromise. A decree was accordingly drawn up.

3. Subsequently the plaintiff applied to the learned Judge to set aside that compromise decree. The application did not state whether it was made under Section 151, C.P.C. or under Order 47 of the Code. No express allegations of fraud were contained in the affidavit filed in support of the application, but there were allegations of undue influence, coercion, criminal intimidation, wrongful confinement and compulsion.

4. The learned Judge came to the conclusion that this was not a case which called for the exercise of any inherent powers which ho possessed. Ha also held that the application did not directly come under Order 47, and that even if it could be said to fall under that order he was not prepared to allow it as he was not prepared to believe the allegations made it the affidavit. He accordingly dismissed the application.

5. An appeal under the Letters Patent has been preferred from this order. Assuming that order was a judgment and that an appeal under the Letters Patent lies from it, we are of opinion that it has no merits.

6. The allegations of the plaintiff merely amount to saying that the compromise filed in Court was a voidable document, having been executed under undue influence, coercion and compulsion, that is to say, at a time when he was not a free agent or a free consenting party. The document, therefore, on those allegations was a voidable document and was good so long as it had not been avoided. At the time when the compromise was filed before the learned Judge he was perfectly justified in passing a decree in terms of it.

7. If it is true that the undue influence, coercion or compulsion, have now been removed and the applicant wishes to avoid the compromise decree he is entitled to do so by a regular suit. The compromise decree stands on the same footing as the compromise itself and would be vitiated equally with the compromise. The proper remedy in a case of this kind is by a regular suit. We may refer to the case of Shami Nath Chaudhri v. Ramjas Chaudhri (1912) 34 All. 143 where it was held that even if there was a remedy by way of motion or application for review of judgment, never the less it was open to the plaintiff to proceed by suit in the matter of attacking a compromise decree which was voidable. We accordingly dismiss the appeal summarily.


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