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Chandra Mohan Ghorai and ors. Vs. Prosunna Kumar Maity - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in64Ind.Cas.259
AppellantChandra Mohan Ghorai and ors.
RespondentProsunna Kumar Maity
Cases ReferredRasik Chandra v. Rajani Ranjan
Excerpt:
civil procedure code (act v of 1908), order xlvii, rule i - consent decree--fraud--review--suit. - .....made was one for review of a consent decree on (he ground that it had been induced by fraud. the learned judge refused to exercise jurisdiction on the ground that in such circumstances the application was not maintainable and that the proper remedy was to proceed by way of suit. on this point i do not agree with him and 1 think he has failed to appreciate the effects of the judgment in the case of golab koer v. badshah bahadur 2 ind. cas. 129 : 13 c.w.n. 1197 : 10 c.l.j. 420 at p. 440. in that case after consideration of the facts it was held, for reasons with which i entirely agree, that in the majority of cases it would be more convenient if relief was sought by way of suit. the learned judges do not hold that an application cannot be made under order xlvii of the civil procedure.....
Judgment:

Buckland, J.

1. The application in which the order appealed against was made was one for review of a consent decree on (he ground that it had been induced by fraud. The learned Judge refused to exercise jurisdiction on the ground that in such circumstances the application was not maintainable and that the proper remedy was to proceed by way of suit. On this point I do not agree with him and 1 think he has failed to appreciate the effects of the judgment in the case of Golab Koer v. Badshah Bahadur 2 Ind. Cas. 129 : 13 C.W.N. 1197 : 10 C.L.J. 420 at p. 440. In that case after consideration of the facts it was held, for reasons with which I entirely agree, that in the majority of cases it would be more convenient if relief was sought by way of suit. The learned Judges do not hold that an application cannot be made under Order XLVII of the Civil Procedure Code. In the case of Rasik Chandra v. Rajani Ranjan 10 C.W.N. 286. it was distinctly held that the ground of fraud, when practised upon a party in connection with a petition of compromise upon which a decree was made, is a good ground for review. In these circumstances I think it is clear that the learned Judge should have entertained the application. The other grounds urged by the learned Vakil for the opposite party, namely, that the application to the District Court was barred by limitation and that the application should have been made before the predecessor of the learned Judge who dismissed the application, are matters which we cannot go into now. These points can he taken before the lower Court when the application is dealt with.

2. Rule is made absolute with costs Hearing fee one gold mohur.

Walmsley, J.

3. I agree.


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