Reilly, J - (1.)In 1906 the brother of defendant 1 mortgaged some land to the mother of the three plaintiffs. After their mother's death the plaintiffs in 1919 brought a suit for sale on that mortgage, O.S. No. 302 of 1919 on the file of the District Munsif of Razole, and got a preliminary decree. There was no appeal against that decree. Not long after that decree had been made the plaintiffs discovered that in the mortgage deed Survey No. 166 had been entered by mistake for Survey No. 168, and that that mistake had been repeated in their plaint and in the decree which they had obtained. They then brought the present suit praying for rectification of the mortgage deed by the substitution of Survey No. 168 for Survey No. 166 and for a similar rectification of the decree in O.S. No. 302 of 1919. It was found both by the District Munsif and by the Subordinate Judge on appeal in the present suit that there had been a common mistake by the parties to the mortgage deed and that in consequence of that mistake Survey No. 166 had been entered in the deed when the parties intended to deal with Survey No. 168. That finding of fact in regard to the common mistake made is binding upon us. The District Munsif ordered rectification, as prayed by the plaintiffs, both of the mortgage deed and of the preliminary decree, and that decision was confirmed by the Subordinate Judge on appeal. Defendant 1 preferred a second appeal to this Court which was dismissed by Waller, J. The present appeal is again by defendant 1 against Waller J.'s decision.
(2.)Waller, J., in a brief judgment, remarks that it has been contended before him that, though the mortgage deed might be rectified, the decree made upon it could not be rectified in the suit. That contention he overruled on the strength of Bepin. Krishna Ray V/s. Jogeshwar Ray (1921) 34 C.L.J. 256 and Venkatrama Aiyar v. Elumalai Naicker (1922) 44 M.L.J. 357. We have examined the records in Venkatrama Aiyar V/s. Elumalai Naicker (1922) 44 M.L.J. 357, so far as they are available, and that case does not appear to be capable of the interpretation which Waller, J., put upon it. It is not clear from the records available whether the decree in the first suit was ever rectified in the second suit; but it is quite clear from the judgment of Schwabe, C.J., in the second appeal that he found no rectification even of the deed to be necessary as the land was in his opinion sufficiently identified by the description originally given in the deed and in the decree in the first suit. Nor was there any discussion in his judgment, with which Wallace, J., agreed, of the question whether the decree in the first suit could have been rectified in a second suit. But Bepin Krishna Ray V/s. Jogeshwar Ray (1921) 34 C.L.J. 256 is a clear authority, if it is to be followed, in support of Waller, J.'s judgment. That was a decision of Mookerjee and Buckland, JJ., of the Calcutta High Court. There in the second suit the mortgage deed and the decree obtained upon that mortgage deed in a previous suit had been rectified. It was found that there had been a common mistake in making the mortgage deed, and the decision was that the deed and the decree obtained upon it might both be rectified in the second suit, provided that would not infringe the rights of any third party acquired in good faith and for value, as the learned Judges found that it would not. That decision was followed a short time afterwards by Mookerjee, J., himself and Cuming, J., in Kailas V/s. Bijay (1922) 36 C.L.J. 434, but without any further discussion. It is in conflict with an earlier decision of Jenkins, C.J., and Holmwood, J., in Kusodhaj Bhukta V/s. Braja Mohan Bhukta (1915) I.L.R. 43 C. 217 and in conflict with another earlier decision of a different Bench of the Calcutta High Court in Bhandi Singh V/s. Dowlat Ray (1912) 15 C.L.J. 675. In the previous suit which led to Kusodhaj Bhukta V/s. Braja Mohan Bhukta (1915) I.L.R. 43 C. 217 the plaintiff had claimed an one-third share of certain property, and the Judge in his judgment had found that he was entitled to that share. But in the decree by some accident a half-share was provided as the share which the plaintiff was entitled to recover. In the second suit, which came before the High Court as Kusodhaj Bhukta V/s. Braja Mohan Bhukta (1915) I.L.R. 43 C. 217, one of the defendants in the previous suit sued to set aside the decree in the previous suit on the ground of mistake. Jenkins, C.J., and Holm-wood, J., found that such a suit, to set aside the decree in the previous suit on the ground of mistake, was unsustainable. They referred to a previous decision of a Bench of the Calcutta High Court, Jogeswar Atha V/s. Ganga Bishnu Ghattack (1904) 8 C.W.N. 473 in which it had been held that such a suit to set aside a previous decree was possible. But Jenkins, C.J., pointed out that that decision was based on a misapprehension of the law in England as disclosed by a case which had been cited, namely, Ainsworth V/s. Wilding (1921) 34 C.LJ. 256. In Bepin Krishna Ray V/s. Jogeshwar Ray (1921) 34 C.L.J. 256 the decision in Jogeswar Atha V/s. Ganga Bishnu Ghattack (1904) 8 C.W.N. 473 was followed; but the reason Jenkins, C.J., had pointed out why that case should not be regarded as a sound precedent does not appear to have been observed. With great respect, I am not able to understand exactly how the learned Judges in Bepin Krishna Ray V/s. Jogeshwar Ray (1921) 34 C.L.J. 256 came to the conclusion that the second suit to set aside a decree in a previous suit upon the ground of mistake was possible, nor how it was that they felt themselves at liberty to differ from the decision of Jenkins, C.J. and Holmwood, J., in Kusodhaj Bhukta V/s. Braja Mohan Bhukta (1915) I.L.R. 43 C. 217. In Mahindra Narain V/s. Mr. Lal Jhari Kuer A.I.R. 1931 Pat. 296 Wort, J. held that a suit for rectification of a decree in a previous suit and for delivery of property in accordance with the rectified decree could not be sustained in this country any more than it could in England. And in Janakdular Sanan Misser V/s. Ambica Prasad Singh (1917) 2 Pat. L.J. 313 Chapman, J., expressed the opinion obiter that Courts in India should refuse relief against previous judgments on the ground of mistake in pleadings or in the conduct of cases.
(3.)To attack by a second suit the decree in a previous suit between the same parties is, speaking generally, against the principle of res judicata. It is recognised that there are certain classes of cases in which it is possible for one of the parties to a decree to attack it in a second suit. For instance, a compromise decree may be attacked in a subsequent suit by one of the parties to it on the ground of mistake, as indeed it can be attacked upon other grounds such as fraud, misrepresentation, coercion, etc. But that is not really in conflict with the principle of res judicata, because such a compromise decree is not the result of adjudication between the parties. It is nierely the contract between the parties put into the form of a decree, and so it can be attacked subsequently in the same way in which a contract or the document embodying a contract can be attacked. In such cases the decree is indeed itself the instrument of contract, made by the hand of the Court but by the will of the parties. Such compromise decrees can be attacked as contracted can be attacked for such reasons as I have mentioned, or in cases where one of the parties is a guardian acting for a minor without the consent of the Court, as in Ganesh Row V/s. Tuljaram Row (1913) L.R. 40 I.A. 132 : I.L.R. 36 M. 295 : 25 M.L.J. 150 (P.C.) or where one of the parties is a minor, ostensibly represented by a guardian who has not been properly appointed, as Partab Singh V/s. Bhabuti Singh (1913) L.R. 40 I.A. 182 : I.L.R. 35 A. 487 : 25 M.L.J. 492 (P.C.). Then there are cases in which it is alleged that the previous decree has been obtained by fraud. It is well known that a second suit may be brought to set aside a previous decree between the parties on the ground that it was obtained by fraud. There again there is no conflict with the principle of res judicata, because in such cases there has been no real and true adjudication between the parties. As was said long ago, "Fraud vitiates everything," or, as Lord Coke said, "Fraud avoids all judicial acts." If it can be shown that a decree in a previous suit has been obtained by fraud, the very foundation of that decree has gone: what was supposed to have been a decision founded on the rights of the parties is shown to rest on iniquity and deception. Both these two classes of cases, where the previous decree is a compromise decree and where the previous decree can be shown to have been obtained by fraud, we can put upon one side as not affecting the question whether decrees made after real adjudication between the parties can be attacked by any of them in a subsequent suit. As Wort, J., pointed out, judgments cannot be. attacked in that way in subsequent suits or actions in England. Before the Judicature Act of 1873 the Court of Chancery could interfere with the proceedings of the Courts of Common Law by injunctions; but, so far as I am aware, even the Court of Chancery could not formally set aside a judgment of one of the other Courts, and certainly that cannot be done since the Judicature Act of 1873. If that cannot be done in England, why is it possible to do it in India? There are various ways of attacking a decree--by appeal, review, amendment, applications to set aside ex parte decrees and applications to restore suits which have been dismissed ex parte. But, what we are asked to say in this case is something quite different, that a decree made between the parties and final between them can be attacked in a subsequent suit and rectified on the ground of mistake. It is well known that a right of appeal does not. exist except when it is given by statute or statutory provision. How can this right to attack a previous decree arise, and how can it exist consistently with the principle of res judicata? If there were any doubt about the matter, the fact that our procedure provides so many other ways of attacking a decree when necessary and provides them explicitly might be taken as an indication that this supposed method of attack by a subsequent suit did not exist. In my opinion this suit, so far as it was for rectification of the decree in O.S. No. 302 of 1919 was not sustainable.