1. This appeal arises out of a suit brought by the plaintiff for recovery of possession of 13 plots of land measuring 20 lights 14 cottas on declaration of the plaintiff's right as auction-purchaser thereto. Three persons Arif, Khater and Dhari called Dwarika in the record had a jama of Rs. 24. This was split up by partition recognised by the landlords and the jama of Rs. 16 fell to Arif and Khater and one of Rs. 8 to Dwarika. The plaintiff purchased these jamas at sales in execution for their own rent brought by the malkis. He purchased the smaller jama on the 16th February 1903 and the larger jama on the 21st July 1903. The whole jama had been mortgaged by way of conditional sale to one Jadab Sirdar, defendant No. 16, we are told in 1885, but there is nothing in the paper-book to show this and in 1 903 the mortgagees sued the mortgagors and made the plaintiff a party. On the 5th May 1903, a solenamah was filed by all the mortgagors-defendants purporting to be also signed by the plaintiff. On the basis of this compromise the mortgaged property was put up to sale under a decree absolute made on the 9th April 1904, and purchased by the decree-holder at the auction sale. He sold the land to the defendant No. 1 by a private arrangement.
2. It has been found as a fact that the plaintiff did not sign the solenamah and was no party to the decree by consent. It is further found that the alleged signature of the plaintiff on the solenamah is a fraudulent imitation of his real signature and that the mortgagors incurred no liability under that decree, which had the effect of depriving the plaintiff of the property which he had purchased. The fraud was the fraud of the mortgagors. The Subordinate Judge has held that the plaintiff's title has not been affected by the sale and that he can recover.
3. The contentions of the defendant No. 1 in appeal are, first, that he is a bona fide purchaser for value under Section 53 of the Transfer of Property. Act and cannot be ejected, and secondly, that the plaintiff cannot succeed without having the consent decree set aside and this cannot be done in the absence of the mortgagors. If the defendant No. 16 had no title to sell, the plaintiff must look to him for remedy.
4. As regards the first question the decision of this Court in Satish Chandra Ghose v. Kameswari Dasi 31 Ind. Cas. 894; 22 C.L.J. 409 is a complete answer. The purchasers from decree-holders auction-purchasers in execution of an ex parte decree cannot avail themselves of the plea of bona fide purchasers for value. By the conduct of the mortgagors and mortgagees in forging the plaintiff's name in the solenamah, he was in a stronger position than a mere ex parte judgment-debtor. Certainly the defendant No. 1 must look to his fraudulent vendor, defendant No. 16, for compensation and cannot resist the plaintiff's title.
5. As regards the second point the rule laid down in Rajib Panda v. Lakhan Sendh Mahapatra, 27. 11; 3 C.W.N.660 seems quite sufficient. The plaintiff being no party to the consent decree can attack it by virtue of Section 44 of the Evidence Act and does not require to have it set aside.
6. It is finally suggested that the consent decree was not set up as a defence to this suit, because when the plaintiff brought his suit in the first instance in 1907 with a mere formal defect which compelled him to withdraw it with liberty to bring a fresh suit on the same cause of action this consent decree was then set up. The plaintiff clearly denies this; but even if it were true, of which there is no finding, the point not having been raised (for the written statement says that the plaintiff's denial is false inasmuch as he did sign the solenamah and knew of it all along), that it was set up in answer to the first suit, it would not affect the operation of Section 44 of the Evidence Act, which only takes effect when the decree is put in proof in Court by the adverse party. Against this it is contended that certain rulings of this Court lay down hard and fast rules and there are only three ways to get rid of the solenamah upon which the decree has been passed by the person against whom it has been passed, firstly, to set aside the decree by a suit secondly, to get a review, and thirdly, to get the Court which passed the decree to vacate it as passed ex parte. The rulings cited to us, Golab Koer v. Badshah Bahadur 2 Ind. Cas. 129; 10 C.L.J. 420; 13 C.W.N. 1197 and Sarbesh Chandra Basil v. Hari Dayal Singh 5 Ind. Cas. 236; 14 C.W.N. 451; 11 C.L.J. 346, certainly lay down nothing of the kind. The case of Golab Koer v. Badshah Bahadur 2 Ind. Cas. 129; 10 C.L.J. 420; 13 C.W.N. 1197 merely decides that an application for review of judgment and vacating a consent decree on the ground of fraud does not bar a suit for setting aside a decree on the ground of fraud. In the case of Sarbesh Chandra Basu v. Hari Dayal Singh 5 Ind. Cas. 236; 14 C.W.N. 451; 11 C.L.J. 346, it is laid down that a consent decree which has become infructuous by reason of something unlawful in the agreement or by reason of the fact that it cannot be specifically enforced by a suit can be successfully attacked by a suit just as if it had been obtained by fraud. But the plaintiff who is no party to the compromise cannot be bound by the decree merely because he has been a party in the suit and decree has been made against him, and is not bound to set it aside. A consent decree differs from a decree of Court in this, that no one is a party to the decree who has not willingly contracted to govern himself by the decree if sui juris and if he is not, the Court must have declared the decree contracted for him by his guardian to be for his benefit. On the facts found here an ex parte decree might have been passed against the plaintiff, but the mortgagors and the mortgagees elected to get a forged consent decree made against him. That decree is a nullity and does not require to be set aside, as it would, if it were an ex parte decree against the respondent, after making him a party.
7. The defendant, therefore, has acquired no title from defendant No. 16 and it is unnecessary to go into the question of the plaintiff's title in detail. But we should in any case be concluded by the finding; of fact in the lower Appellate Court's judgment that the maliks sold the holdings for arrears of their own rent. The plaintiff's title is, therefore, complete from the date of his purchase.
8. For all these reasons the appeal must be dismissed with costs.