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Aushootosh Chandra and anr. Vs. Tara Prasanna Roy - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1884)ILR10Cal612
AppellantAushootosh Chandra and anr.
RespondentTara Prasanna Roy
Cases ReferredGilbert v. Endean L.R.
Excerpt:
compromise and decree thereon - application to set aside compromise--review of judgment--new suit. - .....v. endean l.r. 9 ch. d. 259. in that case the very procedure adopted here was adopted by the parties. a compromise had been arrived at in the course of a suit, and an application was made by motion to set aside that compromise and to allow the suit to proceed, as if the compromise had not been made. the vice-chancellor allowed the application. in the court of appeal it was pointed out that such an application was not the right mode of procedure. we think that is so in this country also, and the proper course is that which we have already pointed out. it occurred to us that we might possibly treat this application as an application for review. but whether we can do so without straining matters unduly we think it unnecessary to say. it is undesirable in the interests of the.....
Judgment:

Wilson and Tottenham, JJ.

1. This was a rule obtained to show cause why a compromise should not be set aside. It was shown that there were two appeals pending in this Court between the same parties, in one of which the present applicants were appellants and in the other their opponent was appellant. It appears that a petition was presented by the present applicants stating that the matters in dispute in those appeals had been settled by compromise out of Court, and asking in substance that their appeal should be dismissed, and that in the case in which they were respondents a decree should be made against them; and orders were made for decrees to be passed accordingly. The petition did not set out the terms of the compromise. The terms, therefore, could not be embodied in the decrees. The compromise was only referred to. It is now stated that the facts are such that the present applicants are entitled to have that compromise disregarded, and to have the appeals proceed.

2. Now, the first question which we -have to consider is, supposing the facts to be of such a nature as they are alleged to be, can we entertain this application in its present form? We think we cannot. The mode in which such a miscarriage, as is said to have occurred in this case, is to be dealt with has been considered on more occasions than one; and it seems to be clear that there are two modes in which the matter can be dealt with. In the first place, a suit will lie to set aside the whole transaction. It is not necessary for us to consider whether in the present case, if a suit were brought, it ought to be brought in the Mofussil or in the Original Side of this Court. It is for the parties to consider that. On the other hand, it has also been held that there is another and a more proper mode of procedure, by applying for a review of judgment.

3. In the case of Lalji Sahu v. The Collector of Tirhoot 6 B.L.R. 649 a decree had been made founded on a compromise. An application for a review was made, and facts were brought to the knowledge of the Court, showing that the compromise ought to be treated as a nullity, and the Privy Council appear to us clearly to treat that application for review as a proper mode of raising the question whether the compromise ought to be treated as a nullity or not. A similar question came before this Court in the case of Mewa Lall Thakur v. Bhujhun Jha 13 B.L.R. App. 11. That was a case in which the decree was obtained by fraud, and the parties had proceeded by a suit to set it aside. The case was heard by Mr. Justice Phear and Mr. Justice Morris; and judgment was delivered by Mr. Justice Phear, who said: 'It seems to us that this suit has been to a considerable extent misdirected. It has already been mentioned that the immediate aim of the plaintiff is to get a decree, which was formerly passed against him by a competent Court, set aside on the ground that it was obtained by fraud and collusion. But the proper course for obtaining such an object as that is to go to the Court which passed the decree either within the time specified in Section 119 of the Civil Procedure Code, if the circumstances are such as would justify action under that section, or at any time (so that it be done with due diligence), if the ground upon which the decree is sought to be set aside be a good ground for reversing and altering the judgment upon which the decree was passed.'

4. These decisions seem to us to be authorities for saying that a mode of proceeding in such cases is by a suit, but that the more proper mode is by an application for review. The question which is now before us arose before the Court of Appeal in England in the case of Gilbert v. Endean L.R. 9 Ch. D. 259. In that case the very procedure adopted here was adopted by the parties. A compromise had been arrived at in the course of a suit, and an application was made by motion to set aside that compromise and to allow the suit to proceed, as if the compromise had not been made. The Vice-Chancellor allowed the application. In the Court of Appeal it was pointed out that such an application was not the right mode of procedure. We think that is so in this country also, and the proper course is that which we have already pointed out. It occurred to us that we might possibly treat this application as an application for review. But whether we can do so without straining matters unduly we think it unnecessary to say. It is undesirable in the interests of the applicants. The materials are very scant; and it might very well happen that the Judges by whom the application might be dealt with might feel bound to dismiss the matter on that ground. We think it better, therefore, to leave the parties to make a fresh application for review if so advised. If they elect to make that application it ought to be made on very much better materials than those before us, and that the whole of the facts in the matter on the best evidence available should be before the Judges before whom the application is made.


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