S.N. Modi, J.
1. This is a second appeal by the defendant Ramkaran in a suit for declaration and injunction.
2. The relevant facts giving rise to this appeal are like this:
A suit was instituted by the appellant in a revenue court for declaration and injunction against the respondents in respect of certain agricultural lands situate at villages Harbhagatpura and Indokhiya. The trial Court dismissed the suit. On appeal by the appellant, the appellate court set aside the trial court's judgment and decreed the suit. The respondents, who are seven in number, went in second appeal to the Board of Revenue. The latter allowed the appeal, restored the trial Court's judgment and dismissed the suit. The appellant thereafter filed a writ petition in this Court under Article 226 of the Constitution of India for setting aside the decision of the Board of Revenue. All the seven respondents were impleaded as non-petitioners in the writ petition. The notices of the writ petition were served on all the respondents. One of the seven respondents, namely, Hardev engaged Mr. C. L. Agarwal, Advocate, to represent him in the writ petition vide Vakalatnama Ex. 1. None of the remaining respondents engaged any lawyer to represent them in the writ petition. Shri Kishen, respondent No. 1, signed the reply to the writ petition. That reply is Ex. A/1 on the record and it bears signatures of Shrikishen as well as Mr. C. L. Agarwal on behalf of all the seven respondents though Mr. Asarwal was engaged for respondent No. 7 Hardev alone. Shrikishen, respondent No. 1, also filed his affidavit in support of his reply to the writ petition. That affidavit is marked Ex. A/2 on the record. The writ petition came up for hearing before a Division Bench of this Court on 30-8-1962. Mr. P. N Datta, Advocate, appeared on behalf of the appellant Ramkaran, and Mr. C. L. Agarwal appeared on behalf of the opposite party. The plea of the respondent Shrikishen before the revenue Court was that the lands in dispute were mortgaged in his favour and Chandra on 2-2-1942 by the father of the appellant and, later on, those lands were sold to him on 14-8-1947 for Rs. 945/-. In support of the above plea, Shrikishen produced mortgage and sale-deeds before the revenue Court. Dealing with the writ petition, their Lordships vide judgment dated 30-8-1962 (Ex. 3) held that the sale dated 14-8-1947 was void as it was made in contravention of the provisions of Section 16(1) of the Jaipur Tenancy Act. As regards the mortgage-deed dated 2-2-1942, their Lordships held that a khatedar tenant was competent to alienate his land by way of mortgage in certain circumstances. Having arrived at the above findings, their Lordships disposed of the writ petition in these words :
'We would have sent back the case for adjudication of the liability under the mortgage, but both the learned counsel have agreed that the plaintiff shall pay to the defendant a sum of Rs. 300 as mortgage money and that thereupon the land which is subject to mortgage shall be delivered to the plaintiff free of encumbrance. The learned counsel agrees that the plaintiff is entitled to get back 7 bighas and 9 biswas of land in khasra No. 19/1 in village Harbhagatpura which is not subject to any mortgage and that he is further entitled to get back 9 bighas and 2 biswas of land in that village and 8 bighas and 9 1/3 biswas of land in village Indokhiya on payment of the aforesaid sum of Rs. 300. It may be mentioned that the land in village Indokhiya was held on a joint lease by the father of the plaintiff along with Chandra and Shrikishan. The share of Chandra is said to have been transferred to Shrikishan subsequently. Out of the 25 bighas and 8 biswas of land in village Indokhiya, the plaintiff is thus entitled to get one-third share leaving the two-third share with defendant Shri Kishan.
Accordingly, the writ petition is allowed and the decision of the Board of Revenue is set aside and the case is remanded to the Board of Revenue with a direction to determine the case in the terms of the above mentioned agreement between the learned counsel for the parties.'
Against the aforesaid judgment of the High Court a review petition was filed on behalf of all the respondents by Mr. C. L. Agarwal, Advocate, on 1-10-1962 but no vakalatnama of any of the respondents was filed along with the review petition. Respondent No. 5 Jagdish filed his affidavit in support of the review petition. The review petition came up for hearing on 24-1-1963 and it was dismissed by the same Bench. The relevant observations made by their Lordships in the judgment of the review petition read as under:--
'After the determination of the question regarding the invalidity of the sale, the parties compromised the dispute and agreed to the redemption of the mortgage. It is difficult to reopen the decision given by us earlier when the parties had agreed to redemption on that basis and as stated in it. We do not think under these circumstances that it is open to this Court to reopen the decision on the point of sale for if that is allowed it will disturb the decision given with consent. As regards the third point, Mr. Datta has made a statement at the bar and has not agreed to what has been stated by Mr. Agarwal. We have no satisfactory justification for disturbing the consent decision on account of the points raised by Mr. Agarwal. The review petition is therefore dismissed.' The Board of Revenue to Which the case was remanded passed a decree on 19-3-1963 in accordance with the agreement arrived at between Mr. P. N. Datta and Mr. C. L. Agarwal on 30-8-1962 in the writ petition. On 12-4-1963 except the respondent Hardev, the remaining six respondents instituted the present suit for grant of a decree for declaration that the agreement dated 30-8-1962 arrived at between Mr. P. N. Datta and Mr. C. L. Agarwal in the High Court and the decree of the Board of Revenue dated 19-3-1963 passed in accordance with the terms of the agreement be set aside and declared void, illegal and inoperative against them. It was also prayed that the defendant Ramkaran be restrained from executing the decree dated 19-3-1963 or from taking possession of the disputed lands in any other manner. It was alleged in the plaint that the plaintiff-respondents neither engaged Mr. C. L. Agarwal as their counsel in the High Court nor did they authorise him or give their consent to him to enter into any compromise or agreement on their behalf with Mr. P. N. Datta, the learned advocate for the defendant Ramkaran. It was further alleged that the compromise was entered into by Mr. C. L. Agarwal fraudulently and in collusion with the other party and as such it is not binding on them. The defendant appellant traversed the allegations made by the plaintiff-respondents in the plaint. He pleaded that Mr. C. L. Agarwal represented all the respondents. It was further pleaded that the Civil Court had no jurisdiction to set aside the decree passed by the revenue Court. It was also pleaded in the alternative that because the Rajasthan High Court accepted the agreement, the subordinate Civil Courts had no jurisdiction to adjudicate upon that agreement or compromise and the remedy of the plaintiffs, if any, lay in filing appeal to the Supreme Court against the judgment of the High Court. Some more pleas were raised in the written statement which would be clear from the following issues framed by the trial Court:--
'1. Whether Shri Chiranjilal Advocate did not represent the plaintiffs in the High Court and had no authority to file the compromise on behalf of the plaintiffs ?
2. Whether the advocate Shri Chiranjilal filed the compromise in the High Court in collusion with the defendant and without the consent of the plaintiffs
3. Whether the Revenue Board passed the decree dated 19-3-1963 on the basis of the compromise decision of the High Court in spite of the objection of the plaintiffs and without affording them an opportunity to be heard ?
4. Whether the suit is not triable by this Court ?
5. Relief ?'
The trial Court after recording evidence led by the parties held that the plaintiffs were not able to prove that Mr. C. L. Agarwal fraudulently or collusively entered into the agreement. On the remaining issues, the trial Court recorded findings in favour of the plaintiffs and decreed the suit. On appeal by the defendant Ramkaran, the learned Senior Civil Judge, Tonk, upheld the findings arrived at by the trial Court and dismissed the appeal. The defendant has now preferred this second appeal challenging the legality of the decrees passed by the Courts below.
3. I have heard learned counsel for the parties and gone through the record of case. There is no manner of doubt that the only person on whose behalf Mr. C. L. Agarwal filed his vakalatnama in the writ petition before the High Court was respondent No .7 Hardev. The plaintiff-respondents neither signed any vakalatnama in favour of Shri C. L. Agarwal nor they authorised him to act or plead on their behalf. Five out of the six plaintiff-respondents have appeared in the witness-box as P. Ws. 1, 2, 3, 5 and 6, and have deposed that they did not engage Mr. C. L. Agarwal in the High Court as their advocate. They have further stated that they also did not authorise him to enter into any compromise or agreement on their behalf. P. W. 4 Hardev has deposed that he engaged Mr. C. L. Agarwal. Advocate, on his own behalf vide vakalatnama Ex. 1 which bore his signatures. He has further deposed that he had no authority to engage Mr. C. L. Agarwal on behalf of the plaintiff-respondents. The lower appellate Court on consideration of the evidence led by the parties came to the conclusion that Mr. C. L. Agarwal was appointed in the High Court to represent respondent Hardev and not plaintiff-respondents. The learned counsel for the appellant laid considerable stress on the reply filed in the writ petition which was signed by Mr. C. L. Agarwal on behalf of the plaintiff-respondents and Hardev. It is significant to note that Mr. C. L. Agarwal has not been produced in evidence to explain how he signed the reply on behalf of the plaintiff-respondents when he was engaged by Hardev alone. It appears to me that Mr. C. L. Agarwal signed the reply representing the plaintiff-respondents under misapprehension that he had been engaged by all the non-petitioners in the writ petition. In the absence of any evidence, oral or documentary, to show that the plaintiff-respondents had, in fact, appointed or engaged Mr. C. L. Agarwal as their counsel, his signatures on the reply on behalf of the plaintiff-respondents, carries no meaning in the eye of law. The learned counsel for the defendant-appellant also drew my attention to the review petition which was filed by Mr. C. L. Agarwal on behalf of the plaintiff-respondents. That is also of no consequence as he was never engaged on behalf of the plaintiff-respondents to file review petition. The review petition therefore cannot be taken to have been filed on behalf of the plaintiff-respondents. My attention was then drawn to the affidavit of the plaintiff-respondent No. 5 Jagdish wherein he has stated on oath that the writ petition was argued on behalf of the plaintiff-respondents and Hardev by their advocate Mr. C. L. Agarwal on 30-8-1962. This admission, at the best, binds Jagdish respondent No. 5 and not the other plaintiff-respondents.
4. That apart, Sub-rule (1) of Rule 4 of Order 3 of Civil P. C. enacts that no pleader, which (term) as per definition given in Section 2 (xv) signifies all persons who are entitled to act and plead and include vakil, advocate and attorney of a High Court, shall act for any person in any Court unless he has been appointed for the purpose by such person by a document in writing signed by such person or by his recognised agent or by some other person duly authorised by or under a power-of-attorney to make such appointment. According to this sub-rule, if an advocate is appointed to act in Court, such appointment must be in writing signed by the party appointing him or a person duly authorised by him. Sub-rule (5) of Rule 4 of Order 3, Civil P. C. says that no pleader who has been engaged for the purpose of pleading only shall plead on behalf of any party unless he has filed in Court a memo of appearance signed by himself and stating the names of the parties to the suit, the name of the party for whom he appears and the name of the person who has authorised him to appear. It is thus abundantly clear from Sub-rules (1) and (5) that if an advocate or vakil is appointed to act in Court, such appointment must under Sub-rule (1) be in writing signed by the party or by a person duly authorised by him. Again, if an advocate or pleader is appointed for the purpose of pleading only, he has to file a memo of appearance signed by himself. In the present case, neither any vakalatnama signed by the plaintiff-respondents appointing Mr. C. L. Agarwal as their counsel was filed in the writ petition or review petition nor any memo of appearance as required by Sub-rule (5) was filed by Mr. C. L. Agarwal. Mr. C. L. Agarwal was, therefore, not entitled to plead or act on behalf of the plaintiff-respondents in the writ petition. The only person for whom Mr. C. L. Agarwal was empowered to act or plead in the writ petition was Hardev, respondent No. 7, inasmuch as he alone signed the vakalatnama appointing Mr. C. L. Agarwal in the writ petition. It is further proved from the oral evidence of the witnesses P. Ws. 1 to 7 that none of the plaintiff-respondents was present in Court on 30-8-1962 when, on the basis of oral compromise between Mr. P. N. Datta and Mr. C. L. Agarwal, the Court disposed of the writ petition. A compromise or an agreement by a pleader on behalf of his client is undoubtedly an act within the meaning of Order 3, Rule 4, Civil P. C. In view of the fact that the plaintiff-respondents never consented to the agreement arrived at between Mr. P. N. Datta and Mr. C. L. Agarwal on 30-8-1962, there is no escape from the conclusion that the disposal of the writ petition so far as it was based an the agreement between Mr. P. N. Datta and Mr. C. L. Agarwal was under a mistaken belief or impression that Mr. C. L. Agarwal was empowered to act and plead on behalf of the plaintiff-respondents. The Courts below, in the circumstances, rightly held that the plaintiff-respondents were not bound by the judgment in the writ petition and the decree passed by the Board of Revenue. The learned counsel for the appellant has placed reliance on Satyanarain v. Balchand, ILR (1954) 4 Raj 905 = (AIR 1955 Raj 59), Laxmidas Ranchhoddas v. Savita-bai Hargovindas Shah, AIR 1956 Bom 54 and Bhoormal v. Narainlal, 1961 Raj LW 521. But these cases are distinguishable on facts and have no applicability to the facts of the present case.
5. The learned counsel for the appellant has next urged that the present suit for setting aside the consent decree or the decision of the High Court in the writ petition based on compromise is not maintainable. According to him, the proper remedy for the plaintiff-respondents was to move the High Court either by a review petition or under its inherent powers under Section 151, Civil P. C. for setting aside its decision.
6. Now, it cannot be disputed that a Court is not competent either in review or under its inherent powers to set aside a compromise decree or a decision based on the ground that the consent of the parties or any one of them was obtained by fraud. It is well known that a con-sent decree being only the contract between the parties with a command of the Court super-added to it, a suit lies to set it aside on any of the grounds on which the contract can be set aside, such as fraud, misrepresentation, mistake etc. The aggrieved party in such a case must file a suit to set aside the consent decree. The question, however, arises whether this broad principle of law is applicable to the facts of the present case. Here, the plaintiff-respondents challenged the decision of the High Court as also the decree of the Board of Revenue based on compromise on the ground that the plaintiff-respondents neither gave consent to the compromise nor did they appoint or engage Mr. C. L. Agarwal who actually entered into the compromise on behalf of the plaintiff-respondents. In other words, the plaintiff-respondents pleaded that they had nothing to do with the compromise and the entire agreement entered into between Mr. P. N. Datta and Mr. C. L. Agarwal in the High Court was unauthorised and without their consent. This is, therefore, not a case where a party gave his consent and, later on, sought to impeach it on the ground that his consent was obtained by fraud, coercion, undue influence etc. In the present case. Mr. C. L. Agarwal acted or entered into a compromise under a mistaken belief or misapprehension that he was representing the plaintiff-respondents and was authorised to enter into a compromise on their behalf. The Court also acted under a mistaken belief that Mr. C. L. Agarwal was empowered to enter into compromise on behalf of the plaintiff-respondents. This is, therefore, a case where the Court passed the order under a mistaken belief that all the parties before it had agreed to the compromise. There is a well-recognised distinction between a fraud, mistake or misrepresentation practised upon a party and a mistake or misrepresentation practised upon a Court. Where an order is obtained from the Court on the allegation that the parties have agreed to it and it is asserted by one party later on that he never gave his consent, it is always open to the Court to investigate the matter and review its own order if it is satisfied that the party did not give his consent at all. In such a case, it is the duty of the Court to set aside the decree or order obtained by mistake practised upon the Court. But when there is apparent consent given by a party and he challenges the decree or order afterwards on the ground that his consent was obtained by fraud or mistake, misrepresentation, coercion etc.. in such a case the Court cannot exercise its inherent powers to set aside the previous decree or order and the remedy of the aggrieved party would be to file a suit for setting aside the decree. In Sadhosaran Rai v. Anant Raj, AIR 1923 Pat 483, Das and Kulwant Sahay, JJ. held-
'A Court is not competent either in review or under its inherent powers, to set aside a compromise decree on the ground that the consent of the parties to the compromise was obtained by fraud. The only remedy of the injured party is to institute a suit to set aside the decree on the ground of fraud. But where it is found that the aggrieved party had not in fact consented to the compromise the Court has inherent power to set aside a decree based on the compromise.'
Das, J. who delivered the judgment observed :
'A distinction has been drawn in the cases of the Indian Courts between a fraud practised upon a party and a fraud practised upon the Court It has been laid down that where the question is whether there was a consent in fact, there is power in the Court to investigate the matter in a properly constituted application and to set aside the decree if it is satisfied that a party never in fact consented to it but that the Court was induced to pass the decree on the fraudulent representation made to it that the party has consented to it, but that where there is a consent in fact, that is to say, where the parties have filed a compromise petition and they admit that they have filed it but one of the parties alleges that his consent was procured by fraud, the Court cannot investigate the matter either in review or in the exercise of its inherent power, and that the only remedy of the party is to institute a suit to set aside the decree on the ground of fraud. In other words, the factum of the consent can be investigated in summary proceedings but the reality of the consent cannot be so investigated.'
The decision in Sadhosaran Rai's case (supra) was subsequently followed in Sheodharprasadsingh v. Ramdeoprasad-singh, AIR 1934 Pat 229 and Chuturprasad Sah v. Mt. Bishunikuer, AIR 1943 Pat 13. A similar view has been taken by the Calcutta High Court in Peary Choudhury v. Sonoorydass, AIR 1915 Cal 622. The Bombay High Court has also held in Basan Gouda v. Churchigiri Gouda, (1910) ILR 34 Bom 408 and Keshav Ramkrishna v. Subba Manga, AIR 1939 Bom 490 that where a consent decree has been passed by practising fraud on the Court, then the decree can be set aside in an application under Section 151, Civil P. C. The same view has been taken by the Madhya Bharat High Court in Hamira Sibua v. Lalu Ganga, (AIR 1954 Madh Bha 81).
7. In the present case, both the Courts below as well as this Court have found as a fact that the plaintiff-respondents were not a party to the compromise or the agreement arrived at on 30-8-1962 between Mr. C. L. Agarwal and Mr. P. N. Datta. This case therefore squarely falls within the purview of the distinction pointed out by Das, J. in Sedhosaran Rai's case (supra).
In Motilal Shivnarayan v. Vishwanath Waman Thakur, AIR 1947 Bom 133, it was held:
'The decree can be set aside by a suit on the ground of fraud if of the required character, but a suit does not lie to set aside a decree in a previous suit on the ground that the Judge in passing that decree had made a mistake.'
In the case in hand, if the Court on account of mistake or misapprehension was wrong in treating Mr. C. L. Agarwal as representing all the plaintiff-respondents the plaintiffs should have approached that Court to reopen the case and get it decided on merits. It was observed by Jenkins, C. J. in Kusadhaj Bhakta v. Broja Mohan Bhakta, (AIR 1916 Cal 816) :
'If we encourage the idea that the alleged mistake of a Judge is to furnish a disappointed litigant with a fresh starting point for keeping his opponent in Court, then the misfortune would be gravely increased to the public detriment ...............No instance has been brought to our notice when a suit to set aside or rectify a decree in a previous suit has succeeded on the ground that the Judge was mistaken though his decree accurately expressed his intention.'
Jenkins, C. J. placed reliance on the decision of Sir Comer Patharam in Mahomed Golab v. Mahomed Sulliman, (1894) ILR 21 Cal 612, the decision of a Division Bench in the case of Sadho Misser v. Golabsingh, (1899) 3 Cal WN 375 and finally, the decision of a third Division Bench in the case of Bhondasingh v. Dowlat Roy, (1912) 14 Ind Cas 93 (Cal).
8. For the reasons stated above, the plaintiff-respondents, in the present case, were ill-advised to file a suit for setting aside the decision of the High Court and the decree passed by the Board of Revenue on the ground that Mr. C. L. Agarwal had no authority on their behalf to enter into compromise dated 30-8-1902. The proper course for them was to file either a review petition or to move an application under Section 151, Civil P. C. for setting aside the decision or the decree on the aforesaid ground.
9. In the result, the appeal is allowed, the judgment and decree of the Courts below are set aside and the suit is dismissed. Having regard to the circumstances of the case, the parties are left to bear their own costs throughout.
10. The prayer for Leave to Appeal to a Division Bench is refused.