1. Amrit, minor, through his next friend Zile Singh, filed a suit for pre-emption regarding the sale made by his father. The vendee Shrimati Ruri resisted the suit and pleaded that she was a tenant of the land in dispute. On 17th May, 1967, Zile Singh made an application in the Court that the matter had been compromised. Thereupon, the statements of Zile Singh and the vendee were recorded. Zile Singh stated that he gave up the suit and that was in the interest of the minor. Thereafter, the statement of the counsel for the vendee was recorded and naturally he was quite satisfied with the statement of Zile Singh, because the suit against the vendee was being dismissed. As a result of this compromise, the suit was dismissed on that very day.
2. After about a fortnight, Amrit, through his mother Shrimati Zahro, made an application under Order 47, Rule 1 read with Section 151, Code of Civil Procedure for the review of the order dated 17th May, 1967, by which the minor's pre-emption suit had been dismissed. It was stated in the application that Zile Singh had colluded with the vendee with a view to injure the interests of the minor-plaintiff and he had entered into a secret agreement with the vendee to give up the suit. He and the vendee wrongly represented to the Court that the withdrawal of the suit was beneficial to the interests of the minor-plaintiff. This action of Zile Singh was fraudulent, collusive and highly prejudicial to the interests of the minor and owing to the 'collusion, fraud and gross negligence' of the next friend, the minor was not bound by the consent decree made on 17th May, 1967, by which his suit had been dismissed. A prayer was then made that the order dated 17th May, 1967, which was passed on the basis of the said fraudulent compromise, be set aside and the suit restored and then tried in accordance with law.
3. This application was opposed by the vendee on a number of grounds. It was said that the review application was not maintainable on the grounds alleged. It was further said that the effect of not giving the particulars of the fraud in the application was that the plea based thereon could not be looked into at all. It was also alleged that the order passed on 17th May, 1967, was neither fraudulent nor collusive.
4. The trial Court held that the review application was not maintainable on the grounds mentioned by the minor and the proper remedy for him was to file a suit to challenge the consent decree on the ground of fraud. It was also held that since particulars of the fraud had not been given in the application, the plea regarding the same could not be tried. It was further held that the order dated 17th May, 1967, was not the result of any fraud or collusion. The review application was, consequently, rejected on these findings. Against that order, the present revision petition has been filed by the minor.
5. It may be mentioned that during the trial of the application, the minor became a major and he himself pursued the said application.
6. The main question that arises for decision in this case is that if a minor challenges the action of his next friend and says that it was due to a fraud having been played upon him that his suit was withdrawn to his prejudice, is his remedy by a review application or a regular suit? The consensus of authority is in favour of the view that in such circumstances, the proper remedy is to challenge such a decree by a separate suit.
7. In the review application filed by the minor, it was stated that the action of his next friend, Zile Singh, was fraudulent, collusive and highly prejudicial to his interests, vide paragraph 4. In paragraph 5, it was mentioned that owing to the above referred collusion, fraud and gross negligent action of Zile Singh, he was not bound by the final order passed on 17th May, 1967, and in the prayer clause, it was said that the order of dismissal of the suit as having been withdrawn and made on the basis of the above-mentioned collusion and fraudulent agreement, be set aside and the suit restored for trial in accordance with law.
8. I have mentioned these details purposely, because there can be a case where the minor's guardian may have withdrawn the suit without obtaining the requisite sanction of the Court under Order 32, Rule 7, Code of Civil Procedure. In that situation, if there is no other allegation made, the minor perhaps may be able to avoid the decree by means of a review application. But, in the instant case, the allegations of the minor were that his previous guardian had acted with gross negligence, in a fraudulent manner and in collusion with the opposite party, when he withdrew the suit filed on his behalf. If such are the allegations, the question arises, should the minor move an application for review or the proper remedy for him is to file a separate suit? It is needless to say that in order to determine the allegations of fraud, gross negligence and collusion, the Court will have to decide the various questions of fact raised by the applicant. For determining them, would a review application be a proper remedy? Under the provisions of Order 47, Rule 1, Code of Civil Procedure, a review application lies on three grounds-(i) discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant's knowledge or could not be produced by him at the time when the decree was passed or order made (ii) on account of some mistake or error apparent on the face of the record, and (iii) for any other sufficient reason. These grounds indicate that the allegations regarding collusion, fraud or gross negligence will not be directly covered by any of them. In my view, therefore, the proper remedy will be by a regular suit and not by an application for review under Order 47, Rule 1, Code of Civil Procedure.
9. During the course of arguments, my attention was drawn to the decisions of various High Courts on this point. The said rulings can be split up broadly into two categories. The first one consists of those where the case was of a minor and later on he had said that his guardian had acted due to fraud, collusion and gross negligence and in those circumstances, it was held by the Courts that his proper remedy was by a separate suit and not a review application. In this connection reference may be made to a Bench decision of the Madras High Court in Moolaswami v. Tatayya, AIR 1926 Mad 1079, and a Bench ruling of the Bombay High Court in Chhotabhai Motibhai v. Dadabhai Narandas, AIR 1935 Bom 54. In the former, it was held:
'A suit to set aside a decree passed against a minor through the gross negligence of his guardian is maintainable and review is not the appropriate remedy.'
In the latter authority, it was observed:
'Although Section 462, Civil Procedure Code of 1882 does not require that leave of the Court should be expressly recorded as is now required by Order 32, Rule 7, Civil P. C., of 1908, it is necessary that the leave should be given after attention of the Court was directly called to the fact that a minor was a party to it, and the Court should apply its mind and ascertain whether the compromise was for the minor's benefit, that the Court had to exercise its discretion and it was to be seen in each particular case from the application and order thereon as to whether the Court intended to grant such leave, but if no such leave is given, the compromise or the withdrawal of the suit by virtue of a compromise is voidable at the instance of the minor by a suit to avoid it, with the result that if the decree or order of the Court disposing of the suit is set aside, the minor is restored to his original position in that suit.'
10. In the second category are the authorities given by the Calcutta, Patna, Allahabad and Rangoon High Courts and those are cases not of a minor but of a major. On principle, however, there does not seem to be much of a difference, because in the case of a minor, the extra thing that is needed is that there should be the sanction of the Court under Order 32, Rule 7, Code of Civil Procedure, to the effect that the compromise was in the interests of the minor. That, as I have already stated, was not the position taken by the minor in the present case. In J.C. Galstaun v. Pramatha Nath Roy, AIR 1929 Cal 470, which has the high authority of Rankin, C. J., it was said:
'If a party desires to have a consent decree amended or vacated upon the ground that it was fraudulently procured his proper course, and indeed his only course, is to proceed by separate suit for the purpose. There is no justification for invoking Section 151 at all.'
11. Somewhat similar was the view taken by the Division Bench of the Patna High Court, consisting of Harries C.J. and Fazl Ali J., in Girdharan Prasad Missir v. Bholi Ram AIR 1941 Pat 574, and the Division Bench of the Allahabad High Court, which has again the high authority of Sulaiman J., in Nathu Lal v. Raghubir Singh, AIR 1926 All 50. Reference may also be made to the judgment of the Rangoon High Court in U Po Htu v. Ma Than Yin, AIR 1936 Rang 389.
12. As I have observed earlier, the consensus is in favour of the view that in such circumstances, the proper remedy is to challenge the decree by a separate suit. I have not been able to persuade myself to take a different view from the one adopted by the learned Judges mentioned above.
13. The result is that this petition fails and is dismissed, but with no order as to costs.
14. Petition dismissed.