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Suresh Chandra Sen Vs. Jogesh Chandra Sen and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1939Cal658
AppellantSuresh Chandra Sen
RespondentJogesh Chandra Sen and anr.
Cases Referred and Sheodhar Prasad Singh v. Ramdeo Prasad
Excerpt:
- .....in foolcoomary dasi v. woodoy chunder biswas (1898) 25 cal. 649 it was held by o'kinealy j. that a consent decree could not be set aside on motion on the ground that it was obtained by fraud and a separate suit should be instituted. it was pointed out that this was in conformity with the english practice and that charges of fraud could not be tried properly on affidavits. the same reasoning was applied by amir ali and pratt, jj. in barhamdeo prasad v. banarsi prasad (1906) 3 c.l.j. 119. there it was held that where a decree was regular and on the face of it correct it could not be set aside except by a suit and the remedy by way of a review was available only in cases where on the face of the judgment it is irregular or incorrect and not drawn up in compliance with the pro-visions of.....
Judgment:

B.K. Mukherjea, J.

1. This rule is directed against an order dated 23rd January 1939 passed by the Subordinate Judge of Dinajpore under Section 151, Civil P.C., by which a final decree passed on compromise in a suit for partition was set aside on the ground of fraud. The facts are not indispute. The plaintiff who is opposite party 1 instituted a suit for partition in the Court of the Subordinate Judge of Dinajpore some, time in the year 1926 for partition of certain homestead and jote lands belonging jointly to him and to the two defendants. Defendant 1 is his brother and defendant 2 who has since died was his cousin. On 21st December 1927 a preliminary decree was passed on consent and the shares of the plaintiff and defendants 1 and 2 in the suit properties were declared to be 7 annas, 4 annas and 4 annas respectively. The work of making the partition was at first given to certain arbitrators, but that having failed a pleader commissioner named Makham Lai Sen was appointed to make the partition. He submitted his report on September 1929. On 7th November 1929 a petition of compromise purporting to be signed by all the parties was presented to the Court and upon that a decree was passed. With regard to the jote lands the allotments made by the commissioner were kept intact, but with regard to the homestead certain alterations were made which are set out in the several paragraphs of the compromise petition and were further depicted in a sketch map attached to the solenama. In para. 5 of the petition of compromise it was provided that defendant 2 would relinquish his share in the homestead in favour of the plaintiff for a consideration of Rs. 1127 only which was to be paid to him within six months from the date of the final decree. Apparently the parties possessed their respective allotments in terms of the final decree for several years and defendant 2 did relinquish his share in favour of the plaintiff for which a sum of Rs. 1127 was paid to him in April 1930.

2. On 26th January 1938, which was more than eight years after the decree was passed, the plaintiff came forward with this application purporting to be one under Section 151, Civil P.C., and he prayed that the compromise decree might be set aside oh the grounds specified therein. The allegations in substance were that defendant 1 who was a pleader was entrusted with the task of preparing the solenama and he got the solenama drafted during the absence of the plaintiff by one Binode, a pleader's clerk. As soon as the plaintiff came to Court the solenama was presented to him for his signature and the plaintiff could not realize at that time what the contents of the petition were. The plaintiff states that he is perfectly sure that para. 10 of the solenama was not there when he put his signature nor was the sketch map attached to the petition. His case was that he agreed to the alteration of the allotments made by the commissioner to this extent, namely that block C should be exchanged for block 1, but beyond that he did not assent to any other change.

3. Defendant 1 traversed all the allegations of the plaintiff and his case was that the plaintiff himself had a hand in preparing the draft and the sketch map and he signed the solenama after fully knowing its contents. The Subordinate Judge accepted the plaintiff's story to some extent and finding that there was a fraud committed on the Court, he set aside the final decree and directed that the suit should be re-heard from the stage at which the solenama was filed. It is against this order that this rule is directed. Mr. Sen who appears for the petitioner has contended before us that the Court below had no jurisdiction to set aside the compromise decree under Section 151, Civil P.C., and the remedy of the plaintiff, if any, lay in a separate suit. In the second place, he has argued that the facts found by the Court below do not amount to fraud practised either upon the plaintiff or upon the Court and as such the order was passed illegally and with material irregularity. In our opinion, both these contentions are sound and must prevail.

4. As regards the proper mode of attacking a decree which is passed on consent there are several decisions of this Court commencing from very early times and the opinion expressed therein cannot be said to be uniform. In Aushootosh Chandra v. Tara Prasanna (1884) 10 Cal 612 it was held by Wilson and Tottenham JJ., that for the purpose of setting aside a decree passed in pursuance of a compromise there were two available modes of procedure: one was by a suit and the other by a review of judgment and the latter was the more regular one. This observation was held to be obiter in Mt. Gulab Koer v. Badshah Bahadur (1909) 10 C.L.J. 420 and not supported by the decisions upon which it purported to be based. It was moreover not a case where the decree was sought to be set aside on the ground of fraud. In Foolcoomary Dasi v. Woodoy Chunder Biswas (1898) 25 Cal. 649 it was held by O'Kinealy J. that a consent decree could not be set aside on motion on the ground that it was obtained by fraud and a separate suit should be instituted. It was pointed out that this was in conformity with the English practice and that Charges of fraud could not be tried properly on affidavits. The same reasoning was applied by Amir Ali and Pratt, JJ. In Barhamdeo Prasad v. Banarsi Prasad (1906) 3 C.L.J. 119. There it was held that where a decree was regular and on the face of it correct it could not be set aside except by a suit and the remedy by way of a review was available only in cases where on the face of the judgment it is irregular or incorrect and not drawn up in compliance with the pro-visions of law. These decisions were elaborately reviewed by Mukherjea J. in Mt. Gulab Koer v. Badshah Bahadur (1909) 10 C.L.J. 420 cited above. It was observed by the learned Judge that with the exception of one case, namely the case in Rasik Chandra Chowdhury v. Rajani Ranjan N. 286 there was no decided authority which allowed a review of a compromise decree on the ground of fraud. It was observed by the learned Judge that though the provisions of Section 623 corresponding to Order 47, Rule 1, Civil P.C., were wide enough to include a case of fraud, the remedy by way of a suit was undoubtedly the more proper remedy. The matter was considered again by Rankin C.J. in J.C. Galstaun v. Pramathanath Roy : AIR1929Cal470 and the learned Chief Justice held definitely that the proper course of having a consent decree set aside and vacated on the ground of fraud was by way of a regular suit. Opinion was expressed that Order 47, Rule 1, Civil P.C., could not furnish a proper remedy as since the decision of the Judicial Committee in Chhajju Ram v. Neki (1922) 9 A.I.R. P.C. 112 it was well established that the expression 'for any other sufficient reason' occurring in Order 47, Rule 1, was not unlimited and only pointed to reasons which were sufficient on grounds analogous to those mentioned in the Rule itself.

5. As regards the application of Section 151, Civil P.C., Rankin, C.J. expressly held that this provision could not be invoked if a remedy by way of a suit was available to the parties. We are in entire agreement with the opinion expressed in the above decision and we hold that the remedy of a party who impeaches a consent decree on the ground of fraud is to institute a regular suit for the purpose.

6. The question as to whether the application for review is permissible has not been placed for our consideration at all and in fact no such application for review was made in the case, nor could be made after this lapse of time. We are however definitely of the opinion that Section 151, Civil P.C., is not the Section which is applicable in such cases. In the first place that Section being a residuary Section should not be applied at all unless there is no other remedy open to the litigants. In the second place the matter for enquiry in such matters is something extraneous to the suit itself and the same kind of investigation is necessary as in a contested suit. It would certainly be hard on the losing party if he is convicted of fraud by a summary proceeding like this and yet had no remedy by way of appeal against that finding. It is contended however on behalf of the opposite parties that although a remedy by way of a suit would be the proper remedy when the petitioner impeaches the decree on the ground of fraud practised upon him but nevertheless when there is fraud practised upon the Court itself the Court under its inherent jurisdiction may grant relief. Reliance has been placed for this view upon a decision of this Court in Peary Chowdhury v. Sonoory Das 91915) 2 A.I.R. Cal 622 and two decisions of the Patna High Court which are to be found in Sadho Saran Rai v. Anant Rai (1923) 10 A.I.R. Pat 483 and Sheodhar Prasad Singh v. Ramdeo Prasad 91934) 21 A.I.R. Pat 229. All these decisions proceed on the footing that there is inherent power in a Court to correct its own proceedings when it has been misled into passing an order by the fraud of any party to the suit. A distinction is drawn between the factum of consent and its reality. It is stated that when an order is obtained from the Court on the allegation that the parties have assented to it, and it is asserted by one party later on that he never gave his consent, it was open to the Court to investigate the matter and review its own order if it was satisfied that the party did not give his consent at all. But when there is apparent consent given by a party to the suit and he impeaches the decree afterwards on the ground that his consent was obtained by fraud, in such cases the Court has got no inherent jurisdiction to set aside the previous decree or order and the remedy of the parties would be by way of a suit. I need not dispute the correctness of this principle but I think that it has no application to the facts of the present case.

7. On the facts found by the Court below, we are of opinion that it cannot be said that there was any fraud practised upon the Court which would justify it in exercising its inherent powers under Section 151, Civil P.C. It is not disputed that the compromise petition was signed by the plaintiff and his pleader. The Court has not found that the contents of the petition were not read by him and that he did not or could not understand its contents. What is found by the Court below is that para. 10 was not in the petition at the time when the plaintiff put his signature upon it and the sketch map was also subsequently inserted. Now para. 10 simply lays down that the sketch map which is attached to the compromise petition was to be regarded as a part of the same. The whole finding therefore amounts to this: that the sketch map was made a part of the petition 7?ithout the knowledge and consent of the plaintiff. We have examined the sketch map ourselves and we have been satisfied that it makes no alteration whatsoever in the terms of the compromise as they appear in the petition itself and it simply elucidates and makes clear the provisions of the solenama as they are set out in paras. 2 to 4. If the plaintiff did consent to the provisions of paras. 2 to 4, we do not think that the map introduced any change whatsoever and the insertion of the map, even if it was done without the knowledge and consent of the plaintiff, was an act of fraud either on the plaintiff or upon the Court. If the plaintiff's case is to be believed that although he apparently signed the document in token of his consent and had given his assent to the solenama which was filed before the Court yet his consent was induced by fraud and misrepresentation, it would not be a case of fraud upon the Court. It would be a case where there was apparent but not real consent and the matter has got to be proved by the plaintiff in a regular suit.

8. In these circumstances we are of the opinion that the Court acted irregularly in setting aside the partition decree under Section 151, Civil P.C., and the order should be set aside. The result is that we make the rule absolute, set aside the order of the Subordinate Judge of Dinajpore and direct that the partition decree should stand. There will be no order as to costs.

Roxburgh, J.

9. I would only add that one of the obvious disadvantages in dealing with this matter as one under Section 151, Civil P.C., is apparent from the fact that it is never clear in these proceedings what exactly the plaintiff's case is, as to what exactly he agreed to at the time of the compromise pr what exactly is the boundary line that he claims. A certain line is described in para. 2 of the compromise petition and apparently his case is that he never agreed to this line. It is also quite clear that when the exchange of huts was made there was presumably some agreement as to where precisely the boundary would come. If, in fact, he was defrauded and misled in signing the solenama, all these points should be appropriately decided in a suit and not in a summary proceeding under Section 151, Civil P.C. I would also add that whatever the question of his being misled in regard to the solenama is, the provisions of para. 3 give some additional lands in the south to defendant 1 separated from the plaintiff's lands by the lands adjoining from station 3 to station 18. The defendant has alleged that he erected a hut in his plot in the year 1933 and there is no denial of this in the petition of the plaintiff. There is no clear finding by the Court on these matters that there had been any deception on the plaintiff by the defendants.


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