Chunder Madhub Ghose and Caspersz, JJ.
1. This is an appeal in a suit by two minors, of whom one has now attained majority. They brought their action to obtain a declaration that a certain solenama, dated the 24th April 1901, filed by the defendant, and the decree, dated the 25th April 1901, passed in a partition suit, on the basis of that solenama, were invalid, inoperative, null and void. It appears that the compromise in question was sanctioned by the Court, and the sanctioning order was signed by the pleaders on both sides. Subsequently, an application for review was filed on behalf of a certain lady acting as guardian of the minor plaintiffs in the partition suit, but that application was withdrawn without any decision being arrived at upon it. Then a regular suit was instituted, which, also, was withdrawn. After this, the litigation giving rise to this second appeal commenced.
2. The learned Subordinate Judge, in his decision on the 5th, 6th and 8th issues, found that there was no specific evidence of fraud against the defendant, and he held that the terms of the solenama having been settled after much discussion and deliberation, and they being favourable and beneficial to the interests of the minors, and the solenama having been filed in Court in obedience to an order of the Subordinate Judge, it was binding upon the plaintiffs. The Court of first instance also found that the guardian of the minor plaintiffs in the partition suit was not, as a matter of fact, a consenting party to the compromise; but, as she had not repudiated the same before the decree was drawn up, it held that the solenama was binding upon the plaintiffs.
3. On appeal to the District Judge, that officer has found that the present suit is not one that could be maintained; and he has refrained from deciding the only other question raised in the case, namely, whether a solenama put in by a pleader, who had power merely to file it, could be properly put in against the express wishes of his clients and be binding on them.
4. In his appeal by the plaintiffs, two contentions have been raised before us, and they cover the grounds dealt with by the learned District Judge. In the view that we shall adopt on the question of the maintainability of the suit, it will be necessary to send back the case for a decision of the point that has been left undecided by the learned District Judge. We proceed to consider whether a suit can lie, except on the ground of fraud, to set aside a solenama and the decree founded upon it.
5. We have been referred to the principal authorities on this subject in the course of the argument, but it will not be necessary to allude to all of them. In the early case of Aushootosh Chandra v. Taraprasanna Roy (1884) I.L.R. 10 Calc. 612, a general principle was laid down that, for the purpose of setting aside a decree passed in pursuance of a compromise come to out of Court, the more proper mode of procedure is by an application for review, though there is also a mode of proceeding in such cases by a suit. This principle was based on a consideration of two other cases, Lalji Sahu v. The Collector of Tirhut (1871) 6 B.L.R. 648 ; 15 W.R.P.C. 23 and Mewalall Thakoor v. Bhujhun Jha (1874) 13 B.L.R. App. 11 ; 22 W.R. 213; and there can be no doubt that, so far as the principle is concerned, there is nothing in the later cases to justify the least departure from it. As was observed in the case of Ramgopal Majumdar v. Prasanna Kumar Samad (1905) 2 C.L.J. 508, to which one of the members of this Bench was a party--the case of Aushootosh Chandra v. Taraprasanna Roy (1884) I.L.R. 10 Calc. 612 has never been dissented from. In Ramgopal Majumdar v. Prasanna Kumar Samad (1905) 2 C.L.J. 508 the plaintiffs, failing to get the compromise decree set aside by way of review, instituted a suit for the self-same relief to which their review application had been directed, and it was held that they could not be permitted to raise the same question which they had raised, or ought to have raised, in the review--the decision in the earlier proceeding being regarded as res judicata. But, on the facts of the case now before us, no question of res judicata can arise, because the application for review previous to the institution of the regular suit was withdrawn, and it cannot be said that any adjudication was arrived at on the grounds stated, or which ought to have been stated, on that occasion.
6. The next case to which we shall refer is that of Barhamden Prasad v. Banarsi Prasad (1901) 3 C.L.J. 119. There, the decree impugned by way of review was irregular, and, on the face of it, incorrect; and the view adopted was that such a decree could not be set aside by a suit. We observe that a compromise had been arrived at in the original suit and the main ground on which the decree on compromise was sought to be set aside by the minor plaintiff was that the compromise was fraudulent. The learned Judge in that case made the following observations, which we think pertinent to the present enquiry:--'It will thus be seen that, although the Calcutta High Court points out that the remedy of an infant, who has been affected by a decree made upon an improper compromise entered into by bis next friend or guardian, is either by a review of judgment or by a suit, no definite principle is laid down upon which it can be determined what course should be adopted in cases where the allegations are not purely based on the ground of fraud. In the present case, it is alleged that a compromise was entered into by the mother of the plaintiff with the deceased defendant,' and then the judgment went on to discuss the provisions of Section 462, Civil Procedure Code. The true principle, however, as it seems to us, applicable to a case like this, is--where a decree is passed by the Court upon an adjudication of the merits of the case, there no separate suit will lie, except when the decree is impugned upon the ground of fraud, and the only remedy of the minor is by an application for review; but where the Court comes to no decision, and the decree is passed simply upon the compromise, there a suit should lie to set aside the decree upon grounds other than fraud.
7. In the present case, the attack is really made by the plaintiffs not on the decree, but on the solenama of which it cannot be said that it was a judgment in itself and on the basis of which, as a matter of course, the Court gave a decree. And in a case like this, it cannot be laid down that no suit would lie to set aside such a decree except on grounds other than that of fraud.
8. There is, however, a very recent ruling of their Lordships of the Judicial Committee, Manohar Lal v. Jadunath Singh (1906) I.L.R. 28 All. 585, which is of a negative value in favour of the appellants before us. That was a case to set aside a compromise on the ground that one of the defendants was a minor and that the leave of the Court to enter into it had not been obtained under Section 462 of the Code, and their Lordships, in delivering judgment, discussed the terms of the decree and, also, the question whether the attention of the Court sanctioning the compromise was directly called to the fact that a minor was a party to it. But we do not find anywhere in the judgment of the Judicial Committee any indication that, in such a case, no suit would lie on grounds other than that of fraud in fact, it was not questioned.
9. Now, the precise point for our consideration is whether the plaintiffs' suit is maintainable in spite of their allegation of fraud which has been negatived by both the lower Courts. Without fraud having been established, the question of the maintainability of the suit rests entirely on other grounds. We think that it does not stand to reason why the plaintiffs having set up a case of fraud qua the decree, and having failed to prove it, should not be permitted to show by evidence that the compromise itself was filed without their consent and is not, therefore, binding upon them; for when their review application was not gone into, no evidence being given, it would be unjust to hold that the plaintiffs must be left entirely without remedy, even though they, desire to show that the proceedings taken against them, when they were minors, were prejudicial to their interests and entered into by the pleader of their guardian contrary to her express instructions. It is not, however, enough to show that the sanction of the Court to the compromise in the present circumstances was obtained; because the learned District Judge points out that the authority of the pleader was only to file any compromise petition on behalf of the guardian of the minors; and, as, in our opinion, the suit is maintainable on grounds other than fraud, the case must be remitted to the Lower Appellate Court for a decision of the other question, which we have already indicated, namely, whether the pleader had the power to file the compromise against the express wishes of the lady (the mother and guardian of the minors) and whether, in that event, the compromise in question was binding on the minor plaintiffs.
10. The result, therefore, is that the case must be sent back to the learned District Judge for a decision of the question whether the solenama is binding on the plaintiffs. Costs will abide the result.