DILIP GUPTA,J - (1.) THE petitioners have sought the quashing of the order dated 13th May, 1992 passed by the' Civil Judge, Muzaffarnagar by which the application filed by respondent Nos. 3 to. 7 under section 151 of the Code of if Procedure for setting aside 'the compromise decree .dated 24th January, 1989 was allowed. The petitioners have also sought the quashing of the order dated 1st December, 1992 by which the revision that had been filed by the petitioners for setting aside the aforesaid order dated 13th May, 1992 was dismissed.
(2.) THE records indicate that Original Suit No. 25 of 1989 had been filed by Ashok Kumar Gupta son of late Sri Anand Prakash and Smt. Geeta Rani wife of Ashok Kumar Gupta against the defendants namely Mahendra Kumar Gupta son of late Anand Prakash, Smt. Krishna Kumari wife of Mahendra Kumar Gupta, Satish Kumar Gupta son of late Anand Prakash, Smt. Shashi Prabha wife of Satish Kumar Gupta and Smt. Shakuntala Devi widow of late Anand Prakash for declaration in which 16th February, 1989 was fixed for filing written statement and 27th February, 1989 was fixed for framing of issues. However, even before the date fixed for filing the written statement arrived, a compromise application was filed on 24th January, 1989 and the suit was decreed on 24th January, 1989 in terms of the compromise. Subsequently, an application dated 23rd April, 1991 was filed by Smt. Shakuntala Devi, defendant No. 5 under section 151 of the Code of Civil Procedure for setting aside the aforesaid compromise dated 24th January, 1989 and the decree passed on the said compromise. In the said application she stated that she had filed Original Suit No. 320 of 1991 against Mahendra Kumar Gupta and others with the allegations that the house in dispute was the joint Hindu family property and even though partition had not taken place, defendant Nos. 1 and 2 had illegally sold their shares to one Pawan Kumar and wanted to give possession. An objection was raised by defendant Nos. 1 and 2 that compromise had taken place on 24th January, 1989. Smt. Shakuntala Devi, therefore, stated in the application filed under section 151, C.P.C. in Original Suit No. 25 of 1989 that such a compromise came to her knowledge for the first time when she made inspection and in fact no compromise had taken place and that she had not engaged any Counsel and neither she had signed the compromise application. According to her the said compromise had been obtained by fraud and misrepresentation. This application was allowed by the order dated 13th May, 1992. A revision was filed by Ashok Kumar Gupta for setting aside this order but the revision was dismissed by the learned Additional Civil Judge by order dated 1st December, 1992. Learned Counsel for the petitioners submitted that the application under section 151 of the Code of Civil Procedure for setting aside the compromise decree was not maintainable and in support of his contention he has placed reliance upon the decision of this Court in Laraiti Devi v. Sita Ram. AIR 1957 All 820.
(3.) THE sole dispute in the present petition is whether the application can be filed under section 151 of the Code of Civil Procedure for setting aside the compromise decree. In Laraiti Devi (supra) this Court held as follows: "The contention of the learned Counsel for the plaintiff is that if the defendant was aggrieved by the order accepting the compromise and making it a apart of the decree he should have challenged it in appeal. If it was his case that the compromise was voidable his option on the grounds of fraud or misrepresentation he had his remedy in a regular suit. In any case he had no right to pray for the quashing of the compromise and the setting aside of the decree on an application made under section 151, C.P.C. This contention appears to us to be well founded. It is well settled that it is not open to any party to invoke the inherent jurisdiction of the Court when he had another remedy open to him but did not pursue it." The only case which the learned Counsel for the defendant could refer to in support of the contention that the decree in the present case could not be set aside on an application under section 151, C.P.C. is the case of Sadho Saran Rai v. Anant Rai. AIR 1923 Pat 483. A careful perusal of the case will, however, show it does not in fact support the contention of the learned Counsel. It had been found as a fact in that case that gross fraud had been perpetrated not only upon the plaintiff but the Court itself. That was the main reason why the compromise decree passed in that case had been, set aside on a mere application. While dealing with, the question whether a compromise decree be challenged by an application or whether a regular suit was necessary for setting it aside was laid down: "A distinction has been drawn in the cases of Indian Courts between a fraud practiced upon a party and a fraud practiced upon the Court. It has been laid down that where the question is whether there was consent in fact there is powers in the Courts to investigate the matter in a properly constituted application and to set aside the decree it is satisfied that a party never in fact consented to it but that the Court was induced to pass the decree on the fraudulent representation made to it' that the party had consented to it but that where there is a consent in fact that is to say, where the parties have filed a compromise petition and they admit that they have filed but if the parties alleged that the consent was procured by fraud, the Court cannot investigate the matter either in review or in the exercise of its inherent power and that the only remedy of the party is to institute a suit to set aside the decree on the ground of fraud. In other words, the factum of the consent can be investigated in summary proceedings but the reality of the consent cannot be so investigated." Applying these principles to the present case it will be found that here the defendant as well as his Counsel had signed the compromise along with the plaintiffs Counsel. The compromise had been filed in Court and had been duly verified. Till that stage there was no allegation of any fraud or misrepresentation. Even the decree had been allowed to be passed on the basis of the compromise. It was only after the decree had been passed that the defendant alleged for the first time that his consent of the compromise had really been obtained by fraud and misrepresentation practised by the son of the plaintiff. Even at that stage no definite allegations were made showing that any fraud had actually been practised on the Court. This was therefore a case in which the factum of the consent was not disputed. The only thing alleged was that the consent had been procured by fraud. According to the Patna case also, therefore, the consent decree in the present case could not be set aside in summary proceedings and the only remedy of the defendants if he wanted to challenge the decree was to institute a suit to set aside the decree on the ground of fraud. It therefore appears to us that the learned Civil Judge had really no jurisdiction to set aside the decree in the exercise of his inherent powers under section 151, C.P.C. The first contention of the plaintiff's Counsel must therefore succeed." ;