V.R. Newaskar, J.
1. This is a petition by appellant No. 1 Binodilal s/o Bishambhardayal for setting aside a consent decree. For securing this he invokes powers of this Court under Section 151, C. P. C.
2. Facts leading upto the present petition are as follows :
Petitioner Binodilal, along with his two brothers Kirodimal and Mahabirdayal and his two minor nephews Virendrakumar and Satyendra-kumar sons of Raghuvirchand, was plaintiff in a suit filed against the heirs and legal representatives of one Virendrasingh Deshmukh viz. Satyendra singh and others for the recovery of Rs. 27,360/-.
3. This suit was dismissed by the trial Court. The plaintiffs including petitioner Binodilal preferred appeal against this decision. During the pendency of this appeal a compromise petition dated 1-2-1956 was filed. This was signed by Sahodra Devi w/o Raghuvirchand as representing the interest of her minor sons Virendrakumar and Satyendrakumar as also by Mahabirdayal for himself and as representing Binodilal and Kirodimal, Mahabirdayal purported to represent Binodilal and Kirodimal under a registered power of attorney executed by them in his favour. As the interest of minor appellants was involved permission of the Court was sought on the ground that the compromise was for the benefit of the minors.
4. The High Court of Madhya Bharat before whom this appeal was pending after duly considering the interest of the minors granted permission to compromise by its order dated 2-2-1956. Under the terms of the compromise agreement the claim in appeal was to be fully satisfied on payment of Rs. 10,000/- by means of the Bank of Indore's Draft dated 31-1-1056 for that amount in the name of Malwa Cotton Press Ujjain and plaintiffs' suit and appeal were to be dismissed. The plaintiffs were the Proprietors of the last mentioned concern. The draft was accordingly given and the claim was fully satisfied.
5. Mr. Chitale who represented all the appellants thereupon expressed before the Court then that the plaintiffs no longer wished to press their claim in Civil Suit No. 26 of 1949 and in appeal No. 33 of 1953 and prayed for dismissal of the same. The High Court acting upon it and upon the compromise petition directed the dismissal of the suit and the appeal in question and a decree was framed accordingly.
6. On 2-5-1956 Binodilal filed the present petition. In this petition he alleged that the appellants (including the petitioner) and the respondents in collusion with each other made an application before the Court under Order 23, Rule 3, C. P. C. by concealing the fact, that the power of attorney conferred by the petitioner upon Mohabirdayal had been cancelled by the petitioner, both from the Court and from the counsel appearing for the appellants.
7. It appears clear from the allegations made in the petition that the petitioner attributed fraud to the defendants and to all his co-appellants. According to him by the fraud committed by all the respondents in collusion with all the appellants except himself both his counsel Mr. Chitale and the Court were deceived. This is a case where, according to the petitioner's allegations, there is fraud committed against the petitioner who is one of the appellants by the rest of the parties as also upon the Court.
8. Mr. Deshpande for the petitioner stated before us that the petitioner, along with the rest of the appellants formed a joint Hindu family who carried on business as a joint Hindu family firm, which owned the concern Malwa Cotton Press Ujjain in whose name the draft for Rs. 10,000/-was given by the respondents.
9. It is significant that the petitioner does not state that the draft was not credited to their joint account nor did he offer along with the petition Rs. 10,000/- with a view to place the respondents in the same position in which they were on the date of dismissal of the suit and the appeal on 2-2-1956. The petitioning appellant, along with others having pocketed Rs. 10,000/-, wants to take a chance of getting something more by attacking bona fides of all his co-appellants and the respondents.
10. It is not disputed that Mahabirdayal held a registered general power of attorney from the petitioner authorising him to compromise suits. But it is said that during the course of this suit itself his power of attorney was cancelled by sending telegraphic notice to the Court with copies to the counsel appearing for the plaintiffs and the defendants.
11. It is not stated either in the petition or the affidavit filed along with it that Mahabirdayal was personally intimated about this cancellation. Telegraphic notice to Court with copies to counsel on either side is somewhat strange way of cancelling power of attorney.
12. It is admitted by Mr. Deshpande before us that in spite of what happened on 1-2-1956 or 2-2-1956 the appellants continue to be members of joint Hindu family.
13. At an earlier stage of argument it was suggested that there was a partition suit between the appellants inter se. But later on it was conceded by Mr. Deshpande that a cousin of the appellants has filed a suit claiming a share in the properties in the possession of the appellants and that all the appellants are resisting this suit.
14. In view of all these circumstances this is pre-eminently a case in which the petitioner should be left to a remedy of filing separate suit, if he so chooses. Remedy by means of an application under S. 151, C, P. C. is neither legal not a proper remedy.
15. There is ample authority for this view in the decisions of this Court as well as those of other High Courts.
16. In a case reported in Kusadhaj Bhakta v. Broja Mohan Bhakta, AIR 1916 Cal 816 (A), a decree was sought to be set aside on the ground of mistake. While dealing with this question Jenkins, C. J., sitting in Division Bench observed as follows :
'It is well settled that a contract of the parties is nonetheless a contract because there is superadded to it the command of a Judge. It still is a contract of the parties, and as the contract is capable of being rectified for an appropriate mistake so as the necessary consequence, is the decree which is merely a more formal expression given to that contract.
I am unable to draw from these decisions of which Haddersfield Banking Company Limited v. Henry Lister and Son Ltd., (1895) 2 Ch D 273 (B), are typical, the conclusion that a decree after contest and giving accurate expression to the Court's intention can be set aside. There is no analogy between the two cases. In the one, the decree is set aside merely because the agreement on which its was founded was set aside.
In the other case, this consideration has no application. It is not as if the litigant is without remedy. Our Code provides ample means without a fresh suit whereby the litigant can obtain the correction of error. If a fresh suit can be started on the ground placed before us here then I can see no end to litigation. In holding as I do that this suit does not lie, I am making no new departure.
I am merely following previous decisions of this Court and in particular the decision of Sir Coiner Petharam in Mahomed Golab v. Mahomed Suliman, ILR 21 Cal 612 (C), the decision of a Division Bench in the case of Sadha Misser v. Gulab Singh, 3 Cal WN 375 (D) and finally, the decision of a third Division Bench in the case of Bhonda Singh v. Dowlat Roy, 14 Ind Cas 93 (Cal) (E).
It is not suggested in this case that there was any fraud. Had that been so then the matter would have been different, for it is recognized that a decree can be set aside on the ground of fraud if of the required character.'
17. The observations, though obiter, have been followed with respect in subsequent decisions where question of fraud was involved in a decision.
18. In Sadasheo Kirad v. Mahadeo Ganesh Sohani, AIR 1929 Nag 111 (F), Findtay, J. C. expressed the view that Section 151, C. P. C. could not be invoked in a case where a party wants to assail a decree based on award on the ground of fraud. The remedy of the party in such a case is to file a separate suit. This decision was followed in Abdul Majid v. Mahmudabi, AIR 1949 Nag 366 (G). That was a case where a consent decree was sought to be set aside on the ground of fraud.
That was suit for partition and the plaintiff was alleged to have been induced to withdraw the claim as a result of fraud committed by the other side and consequently the suit had been dismissed. The plaintiff sought to invoke Court's power under Section 151, C. P. C. It was held that the plaintiff had his remedy by means of a regular suit and Court's power under Section 151, C. P. C. could not, appropriately, be invoked in such a case. In Hiralal v. Mt. Durga Bai, AIR 1937 Nag 413 (H), it is held that a consent decree can be set aside on any ground on which a contract can be set aside. Wadia, J., in Yusuf Ismail v. Abdullabhai, AIR 1932 Bom 615 (I), observed :
'It is well settled that a consent decree is a mere creature of the agreement on which it is founded, and may be set aside on any ground which will invalidate an agreement between the parties, Such as misrepresentation, fraud or mistake. But unless all the parties agree, an application cannot be made to the Court of first instance in the original suit to set aside the consent decree; it must be done by a fresh suit brought for the purpose.'
19. The learned Judge therein followed the view expressed by Beaman, J., in Fatmabai v. Sonbai, ILR 36 Bom 77 (J), that questions of fraud and misrepresentation etc. should not be opened up by a notice motion in which the Court ordinarily has to rest its decision on affidavits.
20. The observations of Wadia, J., set out above were quoted with approval by Lokur, J., who went on to hold that where a decree is sought to be set aside on the ground of fraud or misrepresentation several complicated questions of fact and law are likely to arise and that they can best be decided in a separate suit.
21. Distinction was made in Sheodhar Prasad Singh v. Ramdeo Prasad Singh, AIR 1934 Pat 229 (K), by Kulwant Sahay, J., between cases where a party is alleged to have obtained decision by committing fraud upon the Court and where he is alleged to have committed fraud upon the other side. It was held that where the decision is procured by committing fraud upon the Court and not upon the party Section 151, C. P. C. could be resorted to set the mistake right. But where there is no fraud upon the Court but the opposite party is duped in giving his consent then the proper remedy is by way of a suit. This decision was followed in Chutur Prasad v. Bishuni Kuer, AIR 1943 Pat 13 (L).
22. Thus these decisions seem to lay down clearly that where a consent decree is sought to be assailed on the ground either of fraud or collusion or both said to have been committed by a party to the suit the appropriate remedy is that of a suit and not application under Section 151, C. P. C.
23. It is well settled that fraud and collusion vitiate most solemn transactions. Where a decision is alleged to have been affected by either of them then the aggrieved party can seek Court's assistance by means of a suit specially designed for the purpose. The particulars of fraud in such a case have got to be alleged and if traversed proved. In the matter of proof complicated questions of fact and law are likely to arise. The decision given in the suit becomes subject to rights of appeal conferred by law on either party.
On the other hand when a resort is had to a remedy under Section 151, C. P. C. the decision practically becomes final with no right of appeal. Proceeding under Section 151, C. P. C. from its nature is not meant to be a substitute for a suit. That Section in a way expresses what already vests in Court to be availed of by it to meet the ends of justice where rules of procedure expressly provided do not meet the situation. The power is discretionary and in considering the question of propriety in invoking this residuary power the Court would take into account several matters Such as complexity of the questions involved, availability of a more complete and efficacious remedy by means of a suit and the apparent justice of the claim.
24. Now in the present case where the complaint of a party is that the rest of parties in the case have colluded and committed fraud -- fraud upon the Court and fraud upon his counsel who-was his agent -- this is no doubt a case in the first place where the remedy by way of suit cannot be denied to him. It is not a case where before the other side is in the picture a party commits fraud upon the Court and obtains a decision in his favour. In the latter case the Court which itself is deceived may be prompted to lake an action to undo the wrong brought about by the abuse of process of the Court. This is again discretionary and .1 regular suit to set aside a decision obtained by committing fraud upon the Court is not barred.
25. In the second place several complicated questions of fact involving conduct of various parties, their inter-relations, factual and legal, are likely to be involved in such cases. The question regarding legality of cancellation of power of attorney and the fact of such cancellation are material things to be considered as also question of estoppel based on the principle of approbate and reprobate.
26. In the third place the claim of the applicant apparently is not just. His firm has pocketed Rs. 10,000/- and the applicant without depositing them in Court seeks Court's assistance in burdening the other side with something more if possible. It may be his brothers are not helping him in this attitude or may even be doing so in a garb. It is not without significance that neither the minor nephews of the petitioner nor his brother Kirotlimal assail this transaction as one involving fraud on the part of Mahabirdayal.
27. For all these reasons we are most reluctant to exercise our power under Section 151, C, P. C. in this case and dismiss the application with costs. Counsel's fees to be taxed at Rs. 50/-.
T.C. Shrivastava, J.
28. I agree.