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Ram Asrey Vs. Rameshwar Prasad and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Appln. Nos. 57, 57(F), 134, 134(F) and 135(F)
Judge
Reported inAIR1961All529
ActsCode of Civil Procedure (CPC) , 1908 - Order 23, Rule 3 - Order 32, Rule 7
AppellantRam Asrey
RespondentRameshwar Prasad and ors.
Appellant AdvocateJ.S. Trivedi, Adv. for ;Ratana Dei, Adv.;M.K. Seth, Adv.
Respondent AdvocateB.K. Dhaon and ;Jagdish Narain, Advs. for Respondent No. 3
Excerpt:
(i) civil - void or voidable - order 23 rule 3 and of code of civil procedure, 1908 - agreement obtained by practicing fraud is not void but is voidable. (ii) order obtained by fraud - order 32 rule 7 of code of civil procedure, 1908 - order obtained by fraud from the court - inquiry into alleged fraud by one of the parties to agreement is beyond the powers of the court - if necessary order can be revoked. - - ram asrey not satisfied with that judgment has come up in appeal. it has to be satisfied also that their interest is protected and they do not suffer since they, on account of their incapacity to act, cannot themselves look after their interest......whether the order dated 15-4-1960 by which sanction had been given to rameshwar prasad and ram asrey sanctioning the compromise was induced by fraud practised upon court. the review application which is directed aganist the above order has raised the question that the court while seized of the matter under order 23 rule 4 of the code of civil procedure cannot enter into the question whether the compromise or adjustment, in accordance with which the suit or the appeal is asked to be disposed of, was the outcome of any coercion, undue influence or fraud practised upon a party. this contention has been founded on a division bench decision of this court in mirza husain-yar reg v. radha kishan : air1935all137 where the true effect of rule 3 as respects this question was examined. it laid.....
Judgment:
ORDER

J.K. Tandon, J.

1. This is an application by one Ram Asrey appellant for review of my order dated the 23rd August, 1960: It may be of use to mention a few facts.

2. A suit for partition, was commenced by Rameshwar Prasad claiming a third share in certain properties including a house which had been purchased by Rani Asrey applicant. One of the questions before the court below was as regards the legality of the sale deed in favour of Ram Asrey. One allegation was that the same had been procured through exercise of fraud and misrepresentation.

The trial Court accepted this contention and held against Ram Asrey in the matter of purchase of the house by him. Ram Asrey not satisfied with that judgment has come up in appeal. One of the points which thus presented itself for decision was about the effective nature of the sale deed in favour of Rani Asrey.

3. While the appeal was pending the appellant, i.e. Ram Asrey and respondent Rameshwar Prasad settled their differences and presented a compromise here on the 15th of April, 1960.

In presenting this compromise it also was asked that the dispute between the appellant and the first respondent might be decided in terms of the compromise and that it should not be necessary to issue notice to respondents 2 and 3 as they were not affected by the same. Along with the compromise an application was also made to the Court, since the first respondent was represented in the case through a guardian, for its permission to enter into the compromise agreement.

The requisite permission was then granted the same day. Later, Ram Saran respondent No. 3 appeared and challenged the action of the appellant and the first respondent and claimed that the sanction of the Court had been obtained by practising fraud upon it. He, therefore, wanted that the order granting sanction to the applicant passed under Order XXXII Rule 7 might be revoked.

4. The above application was opposed by Ram Asrey who maintained that no fraud hadbeen practised either in the making of the compromise with the first respondent or his guardian, or upon the Court in procuring its sanction. When this application and the reply came to be heard by me I made the order, which is now sought to be reviewed, remitting two issues to the lower court for a finding on them.

1-A. Whether the compromise dated l5-4-1960 was collusive and had been obtained by practising fraud as per particulars given in the petition No. 57 (F) of 1960 on Rameshwar Prasad and his guardian, and

1-B. Whether the order dated 15-4-1960 by which sanction had been given to Rameshwar Prasad and Ram Asrey sanctioning the compromise was induced by fraud practised upon Court.

The review application which is directed aganist the above order has raised the question that the Court while seized of the matter under Order 23 Rule 4 of the Code of Civil Procedure cannot enter into the question whether the compromise or adjustment, in accordance with which the suit or the appeal is asked to be disposed of, was the outcome of any coercion, undue influence or fraud practised upon a party. This contention has been founded on a Division Bench decision of this Court in Mirza Husain-Yar Reg v. Radha Kishan : AIR1935All137 where the true effect of Rule 3 as respects this question was examined. It laid down that

'The word 'lawful' in Order 23 Rule 3 refers to agreements which in their very terms or nature are not unlawful and may therefore include agreements which are voidable at the option of one of the parties thereto because they have been brought about by undue influence, coercion or fraud. Hence a party alleging fraud cannot be allowed to avoid the compromise admittedly executed by it in proceedings started by an application under Order 23 Rule 3'.

I have no hesitation in confessing that this decision or the said aspect of Rule 3 was not brought to my notice when I made the order sought to be reviewed. I have further no hesitation in admitting and I do so with profound respect, that the decision in the above case has laid down the correct position with regard to Rule 3 of Order 23. In proceedings under this provision the Court cannot enter into the question, as laid down in it, whether any fraud had been practised in procuring the agreement.

An agreement obtained by practising fraud is not void but is voidable. It cannot, therefore be said to be an unlawful agreement. It is a lawful agreement and remains so as long as it is not avoided by the party adversely affected. In this view of the matter issue No. 1-A which concerns an inquiry into the alleged fraud practised upon one of the parties to the agreement, is be-yond the powers of the Court under Rule 3. To that extent, therefore the order dated the 23rd August, 1960 will need to be modified.

5. In the case of the other issue, i.e. 1-B, the position is substantially different. The applicant is relying on two-fold allegations. By one set of allegations he has attacked the compromise itself as being the product of fraud prac-tised upon the guardian. By the second set of allegations he has impugned the order of sanction made under Order XXXII Rule 7. These allegations are that fraud was practised upon the Court by suppressing certain material facts and also by misrepresenting others.

6. The Court while dealing with the cases of minors has on account, of their position as such a comparatively greater duty cast upon it. It has to be satisfied also that their interest is protected and they do not suffer since they, on account of their incapacity to act, cannot themselves look after their interest. It is in this context that the provision of sanction exists in Rule 7 of Order XXXII.

7. Where, therefore, some fraud has been practised upon the Court and, the sanction requisite under the above provision has been obtained as a consequence, the Court by reason of its extra responsibility will be justified in revoking the sanction obtained in that manner. It is a paramount principle of administration of justice that no one shall be made to suffer for the mistake of the Court. Where an order has been obtained from the Court through the exercise of fraud the Court will in its effort to preserve the sanctity of its orders be justified in making an inquiry into the allegation and if necessary to revoke any order thus obtained. The second issue which concerns this part of the allegations can, therefore, validly be sent for an inquiry.

8. I, therefore, modify my order dated the 23rd August, 1960, to this extent, namely that issue No. 1-A is revoked but issue No. 1-B is maintained and the Court below will send its finding upon that issue in the light of the particulars supplied by Ram Saran. It will before proceeding to hear the issue give an opportunity to the appellant to file any reply on those particulars. The findings will be returned to this Court within three months. The stay order is withdrawn.


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