1. This is an appeal against an order purporting to be in review setting aside a decree on the ground of fraud or undue influence. The application for review alleged undue influence. The review has been granted upon a general finding apparently of fraud, undue influence, coercion, etc.
2. A preliminary objection is taken that no appeal lies; that it is barred by Order 47, Rule 7, in that none of the only three conditions in which an appeal is allowed is applicable to the case. For the appellant this is now practically conceded, but we are invited to hear the appeal as an application on the revisional side and to set aside the order granting the review on the ground that none of the conditions which under Order 47, Rule 1, are essential to a review existed in this case, and that the order granting the review was, therefore, an illegal exercise of jurisdiction. I think this contention is correct. Under Order 47, Rule 1, a review may be admitted on any of the three grounds set out in Sub-section (1) of the rule. It is conceded that the plea of fraud or undue influence alleged in this case was not accompanied by the discovery of any new and important matter or evidence; nor is it urged that there was any mistake or error apparent on the face of the record. It has, therefore, to be conceded by counsel for the opposite party who obtained the review that his plea did not come within the first ground. It is, however urged that the words 'for any other sufficient reason' are sufficiently wide to cover a plea of fraud or undue influence.
3. Now it has been held by their Lordships of the Privy Council in Chhajju Ram v. Neki AIR 1922 PC 112 (February 27th, 1924) that the other sufficient reason must be 'a reason sufficient on grounds at least analogous to those specified immediately preceding.' We have had a large number of cases quoted to us, but two tests to be applied to these cases are clear:
(1) That any case in which it has been held that fraud is not a reason within the meaning of Order 47, Rule 1, will help the decree-holder to resist the setting aside of his decree;
(2) that, in view of the Privy Council no decision that fraud comes within the words 'other sufficient reason' will help the applicant for review unless it is clear that decision recognized the limitation (now definitely declared by the Privy Council) that the reason must be analogous to the two earlier reasons specified by the rule.
4. For the decree-holder we are referred to the following cases that, it is contended, comply with the first test, i.e., in which it was held that fraud is not a reason within Rule 1: Foolcomary Dasi v. Woodoy Chunder Biswas (1898) 25 Cal 649, Mirali Rahimbhoy v. Rehmoobhoy Habibbhoy (1891) 15 Bom 594, Barhamdeo Prasad v. Banarsi Prasad (1806) 3C LJ 119. We need not examine these in detail. In Dwarka Dhish Prasad Singh v. Keshva Prasad Singh AIR 1924 All 398 (December 18th, 1923) Piggott, J., was not apparently referred to the Privy Council decision, but did in fact hold, though obiter, in accord with that decision that the other sufficient reason must be ejusdem generis, and further that fraud, at any rate where there was no discovery of new and important matter, was not ejusdem generis.
5. Counsel for the applicant for review has not been able to quote to us a single case which passes the second test, i.e., in which, recognizing the limited scope laid down by the Privy Council of the words 'other sufficient reason,' it has been held that fraud unaccompanied by the discovery of new matter is within that limited scope. A case not concerned with fraud has been referred to as supporting a liberal interpretation of the words 'any sufficient reason.' It is a decision of Mears, C.J., and Piggott, J., in Narain Das v. Chiranji Lal : AIR1925All364 (December 12th, 1924) in which the learned Judges said at page 58(23 A.L.J.):
In our opinion the words 'for any other sufficient reason' in Order 47, Rule 1, are not only very wide in themselves, but were intentionally so made by the Legislature, because of the possibility of exceptional cases arising in which obvious injustice would be worked by strict adherence to the terms of the decree as originally passed.
6. If I may say so, I entirely concur, but the principle enunciated was applied to a case in which new important circumstances had arisen since the decree and in which the reason was, therefore, clearly analogous to the discovery of new important matter. In Tirbeni Kunwar v. Mohan Lal AIR 1922 All 366 (March 2, 1922) there was discovery of new evidence shortly before the decision of an appeal but which the applicant was found to have been unavoidably prevented from producing before the decision. That case was decided before the Privy Council decision could have been known in this country; but it is not necessary to account for it on that ground. It can be supported even in accord with the Privy Council decision on the ground that there was in fact discovery of new evidence and the reason was, therefore, clearly cognate to the first reason in Rule 1.
7. After the conclusion of the arguments our attention was drawn to the case of Gopika Raman Ray v. Mahar Ali : AIR1924Cal872 . In that case a preliminary objection having been taken that the heirs of certain tenant-respondents had not been brought on the record and that the appeal should not proceed against the remaining tenants-respondents, counsel for the appellant stated that he did not intend to proceed against the tenants but would proceed against the proprietor only. This statement was made in the presence of some of the vakils for the proprietor. Accordingly to save the remaining tenants the expense of retaining counsel during the further hearing of the appeal, the appeal was dismissed forthwith against all the tenants defendants, and its hearing proceeded for the whole day against the proprietor. At the end of the day's hearing the senior counsel for the proprietor who had not been in Court earlier raised an objection to the competency of the appeal against the proprietor alone after it had been dismissed against the tenants. Counsel for the appellants contended that the objection came too late and urged that the vakils for the proprietor had not, though present, raised the objection when he abandoned the appeal against the tenants; that, it had been raised at the proper time, he would not have abandoned his appeal. The learned Judges reviewed their order and restored the appeal as against those tenant-respondents who had been served with notice of the rule issued under Order 47, Rule 1, saying that they had no doubt that the order should be recalled 'in the interest of justice.' When pressed with the decision of the Privy Council already referred to the learned Judges remarked: 'in that case, Viscount Haldane held that the expression any other sufficient reason' must be interpreted to mean 'a reason sufficient on grounds at least analogous to those specified immediately previously.' Whether any analogy can be discovered between the two grounds specified, namely, the discovery of new and important matter of evidence' and some mistake or error apparent on the face of the record' need not be discussed. But whether a particular reason is analogous to either the one or the other of these two grounds, may obviously lead to very refined if not subtle arguments,' and supported their view by reference to the decisions of the Judicial Committee in four very much earlier cases which, as the learned Judges held, indicated that the Court had a much wider discretion under Order 47, Rule 1.'
8. I have quoted this case fully because, with the greatest respect, I am unable to agree with the learned Judges that it is open to us to go behind the clear direction in the recent decision of the Privy Council that the reason must be analogous. It is to be noted that their Lordships of the Privy Council say that they 'examined numerous authorities' and there is no reason to suppose that they were not referred to their own earlier decisions. Moreover, in regard to earlier decisions, even those passed after the law was amended to stand as it now stands, they remarked that those decisions may have been influenced by the decisions passed before the law was amended; and, while the corresponding earlier section contained the very words 'requisite for the ends of justice' which the learned Judges of the Calcutta High Court used in Gopika Raman Ray v. Mahar Ali : AIR1924Cal872 I would further note that, as I regard it, there is in fact a clear analogy between the reason' in the case before the learned Judges of the Calcutta High Court and the second of the two reasons enunciated in Order 47, Rule 1. We have therefore to consider for ourselves whether fraud or undue influence unaccompanied by the discovery of any new fact can be said to be a reason analogous to the two preceding reasons.
9. It clearly is not even remotely analogous to the discovery of a mistake or error apparent on the face of the record. In my opinion it is equally distant from excusable failure to discover new important matter. The essence of that reason is the discovery of something new. The application for review in this case did not even hint at the discovery of anything new; it merely alleged that with full knowledge of the facts the applicant foolishly allowed himself to be persuaded to take a course which he now alleges was very injurious to his interests. I am of opinion that such a reason is wholly foreign to either of the two first reasons set out in Rule 1; that fraud or undue influence unaccompanied by any discovery of new matter does not constitute a ground for review and the order granting review was an illegal exercise of jurisdiction. I have not entered into the merits of the allegation of so-called fraud or undue influence; that of course was not necessary for the decision of the case and would further be undesirable as it appears there are other proceedings in regard thereto.
10. I must observe that the learned Subordinate Judge has approached his judgment from an entirely wrong standpoint. The applicant for review, Manohar Singh, died shortly after the filing of his application and could not therefore give evidence. In arriving at a decision as to whether there had been fraud the contents of Manohar Singh's application could be in no way evidence. The learned Subordinate Judge has treated it as a starting point and then considered the evidence in the light of the story told in that application, instead of discarding altogether the statements made in the application; and he has thereby given himself every chance of making a distorted estimate of the evidence. We have not been into the merits and I am not therefore in a position to say whether he has or has not misled himself by the course he adopted. He should have considered the evidence and the evidence only, and if a coherent case of fraud or undue influence could not be made out without any extraneous assistance then fraud or undue influence was not made out. If a coherent case could be made out on the evidence, extraneous support from the contents of the application was superfluous as well as inadmissible. I would set aside the order granting review and restore the decree of the Court below.
11. I agree. Although the application had alleged that Mr. Sheo Narain and Ghasa Singh had by various artifices and fraud acquired complete mastery over Manohar Singh, those allegations refer to matters of previous history. The allegation with regard to the written statement filed by Manohar Singh which was the basis of the compromise decree was that Mr. Sheo Narain had taken out execution of a Munsif's Court's decree for money by arrest of Manohar Singh and having brought him to Court under arrest on November the 6th got him, under the circumstances of undue influence, coercion in which he was placed, to admit the plaintiffs' claim. The learned Subordinate Judge began his findings by remarking: 'The applicant himself is dead and the Court cannot therefore have full narrative true or false of the dealings and the artifices by means of which Babu Sheo Narain and Ghasa Singh are alleged to have acquired influence over Manohar Singh. The application for review, however contains an outline of what that narrative would have been, and it is, therefore, possible with the help of certain facts appearing on the record of Suit No. 88, to construct a narrative which may be a fair approximation to what the missing narrative may have been. I make this attempt as it is essential as a back-ground to a finding upon the question whether there was fraud, coercion and undue influence in procuring the confession of judgment and Babu Sheo Narain had a hand in it.' It is apparent that the learned Subordinate Judge has approached the case from quite a wrong standpoint. But in the view of the law we have taken we have not thought it necessary to go into the evidence at all.
12. The first question in this case is whether when a compromise has been incorporated into a decree the Court can review its order on the ground that the compromise had been entered into under undue influence or coercion. In the present case there can be no doubt that the decree in question is a compromise decree. An offer was made by the defendant when he appeared in Court on the 6th of November 1923, that if the plaintiffs were prepared to give up their costs a decree might be passed against him. This offer was accepted by the plaintiffs and a statement to that effect was made on the 12th of November 1923. A decree was accordingly passed in terms of this agreement on the next day. In my opinion the Court had no power either under Order 47, Rule 1, or under Section 151 of the Civil P.C. to set aside the decree in a summary proceeding.
13. As to Order 47, Rule 1 it was at one time thought by some Courts that the words 'for any other sufficient reason' were wide and comprehensive enough to include a case of undue influence or fraud, and that the remedy was by a review. On the other hand there were other cases where it was held that expression had a narrower scope and that the only remedy was one by a regular suit. I may refer for instance to the cases of Mirali Rahimbhoy v. Rehmoobhoy Habibhoy (1891) 15 Bom 594, Foolcoomary Dasi v. Woodoy Chunder Biswas (1898) 25 Cal 649 and Barhamdeo Prasad v. Banarsi Prasad (1806) 3C LJ 119. There was a third class of cases in which it was held that there were two available modes of procedure, one by a review of the judgment and the other by a regular suit but that the latter was the more appropriate remedy. As an instance of this class of cases I may refer to Golab Koer v. Badshah Bahadur (1909) 10 CLJ 420. In this last mentioned case Mukerji, J., has collected most of the English, American and Indian authorities. We are however relieved from considering cases previous to the year 1922 when their Lordships of the Privy Council in the case of Chhajju Ram v. Neki AIR 1922 PC 112, made an authoritative pronouncement on the scope of the words 'for any other sufficient reason.' At page 152 of 49 I.A., after remarking that there is plainly no such preponderance of view in either direction as to render it clear that there is any settled course of decision which they are under obligation to follow, their Lordships observe:
14. 'They think that Rule 1 of Order 47 must be read as in itself definitive of the limits within which review is to-day permitted, and that reference to practice under former and different enactments is misleading. So construing it they interpret the words 'any other sufficient reason' as meaning a reason sufficient on grounds at least analogous to those specified immediately previously.' These words, therefore, must be read as adding grounds ejusdem generis with those specified previously. Under Section 19 of the Indian Contract Act agreements which are made under fraud, undue influence, coercion or misrepresentation are only voidable and not absolutely void. The victimized party has the choice of either enforcing the agreement or of repudiating it. The agreement is perfectly legal and valid so long as the option to repudiate it has not been exercised. As soon, however, as the option is exercised the agreement ceases to have a binding force. It is manifest, therefore, that at the time when a compromise is incorporated into a decree the compromise is a perfectly valid and legal document though it is liable to be invalidated by a subsequent exercise of option within the period of limitation. The decree in terms of the compromise is, therefore, perfectly good. It is only when subsequent to the decree the option is exercised that the original agreement and with it the decree in terms of it, cease to have a binding force on the person exercising the option. Examined in this light it would appear that the avoidance of the agreement and the decree takes place on a date subsequent to the decree when the option is exercised. Can such a person go to the Court and ask it to review its order because subsequent to it he has exercised his option of repudiation? Obviously not; because as observed by their Lordships of the Privy Council in the case of Kotaghiri Venkata Subbamma Rao v. Velanki Venkatarama Rao (1901) 24 Mad 1, the ground of review must be something which existed at the time of the decree and there was no authority for the review of a decree which was right when it was made, on the ground of the happening of some subsequent event. That case on facts was quite different, but the principle laid down therein was of general application. The compromise in the present case, assuming that it had been made under undue influence or coercion, was merely a voidable document and was good so long as it had not been avoided. The Judge had perfect jurisdiction to pass a decree in terms of it. Subsequently when the undue influence and coercion were removed, the defendant has decided to avoid it but the exercise of his option is of a date subsequent to the decree and would, in my opinion, not be a good ground for setting aside the decree which was perfectly good on the date when it was passed. The cases of fraud on the Court or case of mutual mistake or cases where a party is not duly represented when a compromise is made or where a compromise is made by a person not authorized at all, stand on quite a different footing. For in such cases the defect existed on the very date when the compromise was made and the compromise was void and not merely voidable. A decree in terms of it may, therefore, be capable of being set aside, even if not under Order 47, Rule 1, certainly under the inherent jurisdiction of the Court. But where the compromise and the decree have become unenforceable in consequence of a subsequent exercise of option there is, in my opinion, no jurisdiction in the Court to review its own decree. A clear remedy is open to the aggrieved party to have the decree declared to be null and void by a regular suit.
15. A person who is not a free consenting party and is acting under undue influence or coercion, knows full well the circumstances in which he is placed. When the undue influence or coercion is removed it cannot be said that he has made a discovery of new and important matter or evidence. The undue influence or coercion which he proposes to establish by evidence has not been discovered by him recently as a new or important matter but had been known to him all long. Nor can it be said that where an agreement has been obtained under undue influence or coercion there is some mistake or error apparent on the face of the record. Obviously the allegations of undue influence or coercion are independent of and quite different from the matters in dispute in the suit itself and have to be established by an entirely different class of evidence. If, therefore, cases of undue influence or coercion do not fall under the first two grounds, can it be said that they are analogous to them? In my opinion there is no analogy between discovery of new and important matter or error apparent on the face of the record, and an assertion that a person had been under undue influence or coercion. I am, therefore, of opinion that a Court has no jurisdiction under Order 47, Rule 1 to review a compromise decree on the ground that the compromise had been procured under undue influence or coercion and that subsequent to the decree that compromise has been repudiated.
16. It is true that an appeal under Order 47, Rule 1 is limited to the three grounds mentioned in that rule, but if the Court has no jurisdiction to entertain an application under Order 47, Rule 1, the High Court in appeal would be entitled to interfere and set aside the order, and even if it would not do so in the exercise of its appellate jurisdiction there would be no bar to its interference on the revisional side. I have already expressed the view that a Court's power to review its order depends on a ground which existed on the date when the order was made and cannot be exercised on a ground which has come into existence subsequently. As in my view the validity of a compromise obtained by undue influence or coercion disappears on the subsequent exercise of the option to repudiate it the Court cannot review its decree which was passed on a date prior to the exercise of such option. In this view of the matter it is clear to me that the Court would not have even an inherent jurisdiction under Section 151 of the Civil P.C. to review its decree because the decree was perfectly a good one on the date when it was passed.
17. In the exercise of our revisional jurisdiction we set aside the order granting review and restore the decree of the Court below. The applicant in this Court will have his costs in this Court and in the Court below in the matter of the review, including in this Court counsel's fees on the higher scale.