1. The matter came before me once or twice with reference to an application by the plaintiff to be allowed to appear through an attorney other than Babu Preo Nath Son, her attorney in this suit. That application I granted; and at my suggestion that the nature of the application was such, (involving as it did the professional conduct of an officer of the Court), that it should be disposed of without delay, the parties agreed that the matter should come on before me on Saturday, the 16th April. On that day there was not sufficient time to deal with it completely; and I directed it to be placed on the ordinary cause list without prejudice to the right of the defendant Woodoy Chunder Biswas to raise the contention that the application was not one that I could entertain.
2. Babu Preo Nath Sen, Poshupati Nath Bose, and the defendant Woodoy Chunder Biswas all filed affidavits in answer to the charges brought against them in the plaintiff's petition, and when the matter came on for hearing Mr. Mittra, who appeared for the defendant Woodoy Chunder Biswas, contended that I could not go into charges of this nature or set aside the decree, in a proceeding of this kind, and that the plaintiff's only remedy is to file a regular suit to have the decree set aside on the ground of fraud. I am of opinion that that contention is correct.
3. I do not think it is a proper mode of procedure to try charges of fraud and misrepresentation on affidavits in an application of this kind. I think the only satisfactory method of dealing with them is in a regular suit brought for the purpose, and that is the course which, it is laid down, should be followed in such cases in the High Court of Judicature in England under the Judicature Acts. In Gilbert v. Endean (1878) L. R. 9 Ch. D. 259 it was the opinion of the Master of the Rolls, Sir George Jessel, that a dispute as to whether a compromise ought to be set aside on the ground of misrepresentation or concealment of material facts ought to be decided in a new action. In a debenture-holder's action against Henry Lister & Son, Limited, a consent order was sought to be set aside on motion by one of the parties to the order on the ground of mistake as to material facts; but Mr. Justice Vaughan Williams refused to deal with the matter on motion, and an action had to be brought to have the order set aside--Huddersfield Banking Company v. Henry Lister & Son (1895) II Ch. 273, 276. In Ainsicorth v. Wiiding (1896) I Ch. 673 which was a suit by a second mortgagee against a first mortgagee and other defendants, a decree for an account was made by consent; and the first mortgagee afterwards moved to set aside that decree on the ground that the consent of the parties thereto was given by mistake. Mr. Justice Romer refused the application with costs, on the ground that the proper remedy of the applicant was to bring a fresh action. These cases are stronger than the one I am dealing with, which is based on charges of fraud and misrepresentation of the gravest character. I therefore refuse the application with costs.
4. Mr. Pugh, who appeared for Babu Preo Nath Son, asked me to decide upon the affidavits before me, whether there was any ground for the charges which the plaintiff has brought against his client. I think I had better express no opinion on that question, for if I should come to the conclusion that the charges made against Babu Preo Nath Son are frivolous, and express that opinion, that might hamper the plaintiff in taking further proceedings should she be advised to do so.