George Clause Rankin, C.J.
1. In this case the appellant, J.C. Galstaun, was defendant in Title Suit No. 3 of 1918 in the Court of the Subordinate Judge at Alipore. The case had reference to certain land situate to the south of premises belonging to the appellant and was settled in terms of a petition of compromise filed on the 28th November, 1918.
2. Reading the petition of compromise as it now stands, and as it stood on the date of the decree, the first word pf the third line on the third page is the word 'whole' and the effect of the petition so read has been held to be that while the respondents were to give certain land to the appellant, the appellant was to give in exchange an equal quantity of land form the land abutting certain roads, but if this land of the appellant was not sufficient to equalize in area the land which the appellant was to receive then the appellant would pay for the whole of the land which he was to receive at a certain price, The respondents contention is that the word 'whole' in the place where it occurs as above mentioned has been substituted for the word 'balance,' the real bargain between the parties being that the appellant was to give the respondents from his land enough to equalize in area the land which he was to receive, but that if he had not enough land at the place specified, he should give what he had and pay the respondents for the balance. It appears that the land which the appellant was to get by this exchange was an area of about bf cottas and that the land which the appellant had at the place above mentioned was short of that area by about two cottas.
3. The respondents, as plaintiffs, made an application in execution to enforce the consent decree, and it appears that they contended, first, that the word 'whole' should be 'balance' and, secondly, that even if the consent decree were read as it stands, the true meaning and intent thereof was to the effect that the appellant should give all the land he had at the place mentioned and should pay for the shortage only. The execution matter came before. this Court on appeal and it was determined between the parties that as the decree stood, its true construction was that the present appellant was to pay money compensation for the entire 8 3/4 cottas. The Court, however, took notice of the fact that the present respondents were contending that the compromise petition had been fraudulently tampered with and that the consent decree had been in this way fraudulently obtained by alteration of the word 'balance' into the word 'whole.' This Court pointed out that such a question could not be raised in execution and went on to say that any amendment on the ground that there was fraud in the matter must be made by the Court in the suit in which the decree was passed. It will be open to the Boys to make such application as may be necessary to the Court to make an enquiry in the matter.' The present respondents thereupon made an application before the learned Subordinate Judge for amendment of the decree alleging that the word 'balance' had been fraudulently altered in the compromise petition. This application was not brought as an application in review under Order XLVII of the Civil Procedure Code; indeed it was brought upon an eight-anna Court-fee stamp whereas an application in review requires an ad valorem stamp of the same amount as the plaint. It would appear to have been contended by the present respondents that the application was brought under Section 152 of the Civil Procedure Code, but it is clear that the case made is entirely outside that section. Section 151 has also been put forward as a section which governs and authorises the application for amendment of this consent decree upon the ground that the decree as it stands had been fraudulently obtained.
4. Accordingly, when the present appellant appealed to the District Judge against the order amending the decree, he was made to face a preliminary objection on the part of the respondents to the effect that no appeal lay from the order complained of. He did his best to persuade the District Judge that as an order amending a consent decree was, when made on contest, much the same in effect as an order directing, after contest, that an adjustment of suit be recorded under Order XXIII, Rule 3 of the Civil Procedure Code, one appeal at least should be given to him as it is given to a party against whom it has been held that a suit has been adjusted. This argument from analogy was not accepted by the District Judge who further held that under Section 96 of the Code it was not possible to appeal from a consent decree. As Order XL III of the Code does not specify orders made under Section 151 of the Code as being orders from which an appeal shall lie, the appeal to the District Judge was rejected as incompetent.
5. It appears to me that in these circumstances, it is very necessary to examine the propriety of the procedure adopted by the respondents in this case. The order of the Subordinate Judge not only affects the proprietorship of some 6 cottas of land in Calcutta but also convicts the appellant of fraud, and indeed of a very grave fraud, not lacking in incidents which would bring it within the scope of the Criminal law. If the appellant is to be told that there is no appeal whatever from this decision, it is a serious matter for him. Even if the case could be regarded as within Order XXIII, Rule 3, the appellant's right would be restricted to an appeal to the District Judge as no second appeal lies from an order made under this rule [cf. Section 104, Sub-section (2), Civil Procedure Code].
6. Now, it appears to me that if a party desires to have a consent decree amended or vacated upon the ground that it was fraudulently procured, his proper course, and indeed his only course, is to proceed by separate suit for the purpose. The matter is certainly grave enough to deserve a separate suit. The questions which have to be decided are entirely different from those at issue in the original suit. The relief sought is a very well recognised form of relief appropriate to a suit. In English practice it is old law that a fresh action is necessary to set aside a consent decree upon the ground of fraud and that such relief is not properly sought in an action of review. It appears to me that Section 152 of the Code which is confined to clerical or arithmetical mistakes and to an accidental slip or omission is based upon this general principle, and that Section 151 is in no way intended as a violation of that principle. If the relief can be properly obtained in a separate suit, it does not appear that there is any justification for invoking Section 151 at all.
7. Now a leading case in this Court upon this subject is the case of Golab Koer v. Badshah Bahadur 2 Ind. Cas. 129 : 13 C.W.N. 1197 : 10 C.L.J. 420, in which numerous decisions are considered. The authorities in this Court are not uniform, but putting the matter at the highest in favour of the respondents, it may be said that there is some difference of opinion upon the question whether, and in what circumstances, a consent decree may be reviewed under Order XLVII of the Code. It was said in that case that 'while it must be conceded that a large preponderance of authority is against the contention that a consent decree cannot on any ground be challenged upon an application for review of judgment, there is no foundation for the suggestion that there is a preponderance of authority in favour of the contention that a consent decree may be reviewed on the ground of fraud.' The main proposition decided in that case was that a party who had applied unsuccessfully under Order XLVII for review of a consent decree on the ground, that it had been obtained by fraud was entitled, notwithstanding his failure, to prosecute a remedy by suit. This decision was contrary to a previous decision in the case of Ram Gopal Majumdar v. Prasunna Kumar Samad 10 C.W.N. 529 : 2 C.L.J. 508 and I desire to reserve my opinion upon the point. In Gulab Koer's case 2 Ind. Cas. 129 : 13 C.W.N. 1197 : 10 C.L.J. 420 it was pointed out that there are weighty reasons why a regular suit should be regarded as a more appropriate remedy in such cases. Now, I desire to say that in my opinion it is not competent under Order XLVII to obtain a review of a consent decree on the ground that the consent decree was obtained by fraud. It appears to me that before such a doctrine can be taken as authorised by the Code, it is very necessary to lay one's finger upon some enactment which is clearly intended to make so large and inconvenient an exception to the general principles which govern this matter. Rule 1 of Order XLVII, after speaking of a case where a party has discovered new and important matter which was not within his knowledge or could not be produced by him at the time when the decree was passed, and of mistake or error apparent on the face of the record, introduces the words 'or for any other sufficient reason.' In Chajju Ram v. Neki 72 Ind. Cas. 566 : 49 I.A. 144 : 26 C.W.N. 697 : 30 M.L.T. 295 : 41 P.L.R.1922 : 3 P.L.T. 435 : A.I.R. 1922 P.C. 112 : 16 L.W. 37 P.W.R. 1922 : 3 Lah. 127 : 43 M.L.J. 3322 : 24 Bom. L.R. 1238 : U.P.L.R. (P.C.) 99 : 36 C.L.J. 459 (P.C.) the Judicial Committee had occasion to point out that these words were not unlimited and must be taken to point to a reason which is sufficient on grounds at least analogous to those mentioned in the rule. It appears to me that if mistake or error is prima facie intended to be beyond the scope of the rule unless the mistake or error be apparent on the face of the record, it is curious, to say the least of it, that a party should employ this procedure for the purpose of making out a contentious Case of fraud. In my opinion the correct doctrine under the Code of Civil Procedure is in no way different upon this point from that which is laid down for England in Daniel's Chancery Practice, 8th Edition, page 709. The authorities in this Court to the contrary are neither numerous nor impressive and have not infrequently been challenged [cf. Barahamdeo Prasad v. Banarsi Prasad 3 C.L.J. 119 at p. 130]. On principle, and as a matter of construction of Order XLVII, of the Code, I approve of the view taken in Ram Lagan Sahu v. Ram Birich Koeri 50 Ind. Cas. 497 : 4 P.C.J. 205 and were it necessary I should desire to refer the matter, to a Full Bench.
8. In the present case, however, the applicants themselves did not even take the precaution of applying by way of review and they succeeded before the District Judge in having the defendant's appeal dismissed as incompetent. Assuming it to be possible that we should now treat this matter as arising under Order XLVII, of the Code by giving leave to the respondents to pay the necessary Court-fees, I am clearly of opinion that We ought not to do so. The method which they have adopted is highly inappropriate to the circumstances of the case, and, moreover, so long as there is any room for argument to the effect that the applicants, should they fail in review, can proceed all over again by suit, I should be most unwilling to allow the amendment upon any terms.
9. It has been contended before us that because the Division Bench of this Court which heard the appeal brought from the order made in execution expressed itself as though the best course for the respondents was to make an application in the suit for amendment of the decree, the present appellant should be held bound by this expression of opinion and must sit down under the decision of the Subordinate Judge, however disastrous its consequences may be to his business or to his reputation. I am of opinion that the remarks made by the Division Bench in the execution matter carry with them no legal consequence whatever and were in the nature of gratuitous advice.
10. In my judgment the correct course for us is to treat this appeal as an application: under Section 115 of the Civil Procedure Code against the order of the Subordinate Judge and to set aside the whole of the proceedings upon the application for amendment of the decree. It may or may not be that the respondents, if they bring a suit, will get an allowance under the Limitation Act for the time which has been expended before the Subordinate Judge. It will be apart of our order that the respondents do pay to the appellant his costs of the proceedings before the Subordinate Judge and in this Court.
C.C. Ghose, J.
11. I agree.
12. The appellant is entitled to a refund of the Court-fee paid on the memorandum of the appeal to this Court less Rs. 10 stamp which would have been paid on the revision application.