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Assoomal Vs. Tekumal and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. No. 401 of 1959
Judge
Reported inAIR1961Raj29
ActsCode of Civil Procedure (CPC) , 1908 - Sections 151 - Order 9, Rule 13
AppellantAssoomal
RespondentTekumal and anr.
Advocates: P.D. Kudal, Adv.
DispositionRevision dismissed
Cases ReferredSadhosaran Rai v. Anant Rai
Excerpt:
- .....fraudulently by dufga prasad for the engagement of mr. prabhu dayal bhargava and obtaining the consent decree. the plaintiff traversed these allegations and raised an objection that the allegations could form the subject of a separate suit but could not be enquired into in a miscellaneous application by the plaintiff (sic) (defendant). the learned munsif was of the opinion that the decree being a consent decree, the provisions of order 9 rule 13 were not applicable. he also held that the various complicated questions arising on the allegations of assumal could only be decided in a regular suit. he accordingly dismissed the application by order of 30-6-1959. assumal has filed this revision.3. it is urged on his behalf that there was no consent in the present case and, therefore, it.....
Judgment:
ORDER

K.L. Bapna, J.

1. This is a revision against an order of the learned City Munsif, Ajmer dated 30-6-1959.

2. Assumal was the defendant in a certain suit for recovery of money instituted by Tekumal and Pessumal. Learned counsel states that thenumber of the suit was 165/1959. On a certain date, Mr. Prabhudayal Bhargava Pleader appeared for the defendant with the petition of compromise with the plaintiff and the suit was decreed in the terms of the compromise on 14-3-59. On 3-4-1959, Assumal made an application for setting aside the decree invoking provisions of Order 9 Rule 13 and section 151 C. P. C. on the allegation that he had never engaged Mr. Prabhudayal Bhargava and that he had no authority to enter into the compromise. It was alleged that Assumal never agreed to engage Mr. Prabhudayal Bhargava. It was mentioned that he had engaged Shri Durga Prasad in some other case in a different court and had signed on the Vankalatnama for that purpose and the said signed Vakalatnama of Assumal may have been used fraudulently by Dufga Prasad for the engagement of Mr. Prabhu Dayal Bhargava and obtaining the consent decree. The plaintiff traversed these allegations and raised an objection that the allegations could form the subject of a separate suit but could not be enquired into in a miscellaneous application by the plaintiff (sic) (defendant). The learned Munsif was of the opinion that the decree being a consent decree, the provisions of Order 9 Rule 13 were not applicable. He also held that the various complicated questions arising on the allegations of Assumal could only be decided in a regular suit. He accordingly dismissed the application by order of 30-6-1959. Assumal has filed this revision.

3. It is urged on his behalf that there was no consent in the present case and, therefore, it was a case of fraud having been committed on the court. He relied on Hamira Sibua v. Lalu Ganga, AIR 1954 Madh B 81, for the contention that the matter could be enquired into by the court in exercise of powers under section 151 C. P. C.

4. I have carefully gone through the case relied upon, and am of opinion that it does not support the petitioner. In para 3 of the judgment, it has been held that Order 9 Rule 13 does not apply to a case where the decree purports to have been passed on compromise. In para 4, the observations in. Sadhosaran Rai v. Anant Rai, AIR 1923 Pat 483, have been approved. The relevant portion is, 'the factum of the consent can be investigaged in summary proceedings but the reality of the consent cannot be so investigated. In the present case, the consent of Mr. Prabhu Dayal Bhargava is not challenged. What is challenged is the authority of Mr. Prabhu-dyal to enter into the compromise. The factum of the consent does not require investigation in the present case. What is required is that the consent given by Mr. Prabhudayal Bhargava was not really the consent of Assumal, because Mr. Prabhu Dayal had not been engaged as his lawyer. This is obviously a case where Assumal can, if he so chooses, institute a suit for setting aside the compromise decree on the ground of fraud by certain persons against whom he has the grievance. The matter might have been different, if the person whose con-sent appears on the record has only been imper-sonated. But that is not the case here.

5. There is no force in this revision. It isaccordingly dismissed in limine.


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