- (1.) THIS writ petition under Article 226 of the Constitution, raises a Point of law.
(2.) THE dispute between the peti tioners Chandra Shekhar, Sheo Shanker and Hari Shanker and the respondent Beni Madho and Harakh Narain and Shrimati Dhanpati and her minor sons Sheo Kumar, Om Prakash, Cyan Pra-kash, Anil Kumar and Rakesh Kumar related to the plots comprised in Khatas 3, 25 and 65, situate in Punpur, hamlet of village Kheda, in the district of Sultan-pur. These Khatas comprised several plots including plots Nos. 25, 37 and 1145. All the plots stood recorded in the name of Beni Madho, opposite party No. 4. During the consolidation opera tions, the petitioners filed an objection before the Assistant Consolidation Officer, opposite party No. 3. Similar objections were filed by Harakh Narain, opposite party No. 5 and by Dhanpati on her own behalf and on behalf of her five minor sons. Dhanpati and her minor sons have not been impleaded as parties to this writ petition. Each objector claimed rights in the plots comprised in the said two Khatas. They entered in to a compromise (Annexure 1) on Janu ary 21, 1967 and filed and verified the same before the Assistant Consolidation Officer. An order (Annexure 2), was passed by the said officer on the basis of the said compromise, on the same date. Not satisfied with this compromise to which Beni Madho was allegedly a party, he filed an appeal which was dismissed by the Assistant Settlement Officer, Consolidation on three grounds, namely, (1) that Beni Madho had not impleaded Dhanpati and her five minor sons who were parties to the compro mise and which, therefore, could not be set aside in their absence from the array of parties, (2) that Beni Madhe entered into the compromise and could not be permitted to go back upon that and (3) that the appeal was also bar red by limitation. Beni Madho then filed a revision before the Director and this was allowed, the appellate order was set aside, the compromise was also set aside as a whole and the case was remanded to the Consolidation Officer for inviting pleadings from each of the parties, framing issues, allowing oppor tunity to them to adduce evidence and deciding the matter on merits by ignor ing the compromise. It is in these circumstances that the present writ peti tion has been filed for the issue of a writ of certiorarl quashing the order passed by the Director of Consolidation. The first contention of the learned counsel for the petitioners is that the order of the Assistant Consoli dation Officer founded on the compro mise of the parties, was not an appeasable or revisable order and, therefore, both the appeal and the revision were not competent. He placed reliance up on sub-section (3) of Section 96, Code of Civil Procedure which provides that no appeal shall lie from a decree pass ed by the Court with the consent of the parties. It was pointed to him that Section 96 has no application to cases under the U. P. Consolidation of Hold ings Act and the argument then advanc ed was that the provisions of Section 96 can in that case be applied by analogy. There appears to be no force in this contention inasmuch as even consent de crees have been made appealable un der Section 11, U. P. Consolidation of Holdings Act. This section says that any party to the proceedings under Section 9-A aggrieved by an order of the Assistant Consolidation Officer may, within 21 days of the date of the order, file an appeal before the Settlement Officer, Consolidation. An Order pass ed on the compromise is an order un der Section 9-A and, therefore there can be no escape from the conclusion that such an order was appealable.
(3.) THE second contention of the learned counsel for the petitioners is that a consent decree cannot be set aside in appeal, revision or review and besides it can be set aside only by a regular suit in the competent Civil Court. Sub-section (3) of Section 96, of the Code of Civil Procedure in so far as it bars an appeal from consent de crees, gives effect to the principle that a judgment by consent acts as an estop pel. In the case of a consent decree, the Judicial Committee refused to enter tain an appeal or to consider the suffi ciency or otherwise of the consent as the decree could only be set aside by substantive proceedings appropriate to that particular remedy. See Zahirul Said v. Lachhmi Narayan, AIR 1931 PC 107. A consent decree can be set aside on any ground which would invalidate an agreement, such as misrepresentation, fraud or mistake. This can only be done by a suit and a consent decree cannot be set aside by an appeal, or a review, or by a rule obtained on a motion. See Bibee Solomon v. Abdool Azeez, (1881) ILR 6 Cal 687; Mirali v. Rehmo-obhoy, (1891) ILR 15 Bom 594; Nathu Lal v. Raghubir Singh, AIR 1926 All 50 and Yusuf Ismail Bhai v. Abdulla-bhai Lalji, AIR 1932 Bom 615. These rulings, however, have no application to the facts of the case. In the instant case, the law permits an appeal to be filed against a consent decree and if that decree Is unlawful, it can be set aside by the Settlement Officer in the appeal; and if he does not set it aside, a revision would be competent before the Deputy Director or Director. This ground for invalidity of the order of the Director, therefore, is not valid.;