1. The facts of the case out of which this appeal has arisen are these. On 2nd April 1915, defendant 4 borrowed a sum of Rs. 1,450 from defendants 1, 2 and 3. It was secured by a mortgage-deed which stood in the name of defendant 1. On 6th November 1920, it it alleged that defendants 1, 2 and 3 entered into an agreement to sell to the plaintiff the mortgage debt for Rs. 2,100. Plaintiff it is alleged paid the money. The deed of sale was not, however, completed for some reason or other.
2. The plaintiff then entered into an agreement with defendants 1, 2 and 3 which was that defendant 1 should bring a suit on the mortgage bond at plaintiff's cost and any money realised would be paid to the plaintiff. The suit was brought on 24th November 1922, defendant 5 who is the appellant now before us being impleaded as a purchaser of the equity of redemption. Defendants 1, 4 and 5 entered into compromise by which it was agreed that the liability of defendant 4 would be fixed at Rs. 2,100, and the suit was disposed of in terms of the compromise. It may here be stated that at the time when this compromise was entered into the plaintiff in the present suit was away in Akyab. The plaintiff then brought this present suit in which he asked; (1) that the agreement to sell the mortgage debt to him might be enforced : (2) that the decree passed on the solehnama might be declared fraudulent and inoperative; (3) that plaintiff was not bound by that decree, that that decree might be set aside, the mortgage suit restored to file and the plaintiff allowed to prosecute the mortgage suit. There was also an alternative prayer that it might be declared that the mortgage bond was sold to the plaintiff who paid the money and a decree granted to the plaintiff against defendants 1, 2 and 3 for the entire amount due on the mortgage and some further reliefs.
3. The suit was contested by defendant 5 alone the purchaser of the equity of redemption. The trial Court held the decree on the solehnama void and inoperative and he set it aside. He further ordered that the suit should be restored to file the present plaintiff substituted for defendant 1 as plaintiff in that suit. He also granted plaintiff specific performance of the contract to sell to him the mortgage debt against defendants 1, 2 and 3. On appeal the decree was upheld. Defendant 5 appeals to this Court.
4. He first of all contends that the decree passed on compromise in the mortgage suit cannot be set aside at the instance of a person who was no party to the suit. He is certainly entitled to succeed on that point. As pointed out by Mukerji, J., in Fateh Chand v. Narsing Das (1915) 22 C.L.J. 383, at p. 388 it is not competent to a person to invite the Court to vacate a consent decree to which he is no party. Mukerji, J., further remarked that being a stranger to the decree the only declaration he could get was that the decree did not affect his right. The decree could not be vacated at his instance and the appeal which was terminated by the decree be heard as though no decree had been passed. That same principle applies to the present case. The plaintiff was a stranger to that decree by which expression I understand that he was not a party. He might have been interested in the result but that would not make him a party. Mr. Sircar contends that Mohesh the plaintiff in that case was the benamidar of the present plaintiff. Even if he was, that does not make the present plaintiff a party to that suit. The parties to a suit, as I understand the expresssion, are the persons whose names appear on the record as parties. Neither indeed was Mohesh a benamidar for the plaintiff in the present suit. The plaintiff in the present suit was not at that time the owner of the mortgage debt for the sale had not been completed and no title had passed. He is even now suing for a specific performance of the contract to sell. He could not have been sued on the mortgage bond for he did not own it and Mohesh alone could have sued. Mr. Sircar seems to argue that by the agreement and the payment of consideration the title passed. To support that he relies on Jnan Chandra Das v. Rajani Kanta Pal (1918) 22 C.W.N. 522. That was an entirely different case.
5. The plaintiff sought to eject defendant. Defendant had paid the purchase money and been put into possession by the plaintiff. The rights of no third party were in question as is pointed out in the judgment.
6. The Court held that in such circumstances the defendant could not be evicted. In the case of Shive Goh v. Maung Inn A.I.R. 1916 P.C. 139, it was pointed out that the rule of the English Court of equity had no application to the sale of real estate in Burma (and, therefore, also in India). Section 54, T.P. Act providing that apart from a registered instrument, a contract for sale created no interest in or charge upon the land.
7. It is, therefore, perfectly clear that the plaintiff is not entitled to have the consent decree in the mortgage suit, to which he was not a party, set aside and to have the case reopened.
8. Then with regard to the prayer of 4he plaintiff that the decree in the mortgage suit No. 175 of 1922 should be declared fraudulent and inoperative by which I understand him to mean not binding on him on the facts found the decree is not fraudulent. There is a tendency I have often noticed to use the word fraudulently without really understanding what the expression implies.
9. A person does a thing fraudulently if he does it with an intent to defraud. Two elements are necessary to constitute fraud : deceit that is to say, some, one is deceived, and injury or loss to the same preson. How could it be said that the consent decree was obtained by fraud? None of the parties to the decree were deceived nor is it suggested that any deceit was practiced on the Court.
10. A fraudulent decree presupposes that a fraud has been practiced on the Court or on one of the parties to the suit.
11. As for being binding on the plaintiff he was not a party to it and so obviously is not bound by it. The appellant has further contended that the plaintiff is not entitled to a specific performance of the contract to sell the mortgage bond to the plaintiff as there was a novation of contract and a new contract entered into.
12. The answer to this contention is that, it is a question of fact which was not raised in the Court below. The result is that so far as the decree is for specific performance of contract as against defendant 1, 2ka, 2kha and 3 the decree of the lower Courts will remain.
13. The remainder of the decree by which the compromise decree in suit No. 175 of 1922 was set aside and the suit ordered to be restored to file and the plaintiff substituted in the place of defendant Mohesh is set aside and the plaintiff's suit on this respect dismissed. Appellant-defendant 5 is entitled to his costs throughout.
14. I agree.