CHUTUR PRASAD SAH Vs. MTBISHUNI KUER

JUDGEMENT

(1.) There was a partition suit in which the plaintiff was the younger brother and defendant 1 the elder brother. Defendants 2 to 4 were the sons of defendant 1 and defendant 5 was the mother of plaintiff and defendant 1. The wife of defendant 1 was also impleaded as defendant 6. Written statements were filed by defendants 1 and 5. Subsequently, on 5 April 1939 a petition of compromise was filed which purported to bear the thumb impression of defendant 5. It was also signed by her pleader through whom she had entered appearance. A decree in terms of the petition of compromise was passed on 6 April 1989. By the terms of the compromise six annas of the family properties was given to the plaintiff and ten annas to defendants 1 to 4. The mother defendant 5 was given a share in a certain village for her maintenance. On 1 July 1940 defendant 5 made an application for setting aside the compromise decree on the ground that she had no knowledge of the compromise, that she did not actually agree to the terms of the compromise and that she did not put her thumb impression on the petition of compromise. The petition purported to have been made under Order 9, Rule 13, Order 28, Rule 8 and Section 151, Civil P.C.

(2.) his application was opposed by defendant 1 on the ground that it was not maintainable and also that defendant 5 had actually entered into the compromise and signed the petition of compromise. The question of maintainability was first taken up by the learned Subordinate Judge, and by his order dated 20 January 1941 he held that the application was maintainable. Against this order defendant 1 filed an application in revision to this Court (Civil Revision No. 102 of 1941) which was summarily rejected on 24 March 1941. In due course the case was heard on the merits; and by his order dated 27 October 1941 the learned Subordinate Judge allowed the application and set aside the compromise decree and restored the suit to its original number for disposal according to law. Against this order, defendant 1 has filed this application in revision. Mr. N.K. Prasad for the petitioner contends that the learned Subordinate Judge had no jurisdiction to entertain the application for setting aside the compromise decree. He argues that the only remedy of defendant 5 was to bring a regular suit to set aside the compromise decree. It is not clear from the order of the learned Subordinate Judge as to whether he treated the application as one under Order 9, Rule 13 or Order 23, Rule 3 or under Section 151, Civil P.C. So far as Order. 23, Rule 3 is concerned, it is not argued before us by either side that it does apply. Obviously, it has no application. Mr. N.K. Prasad suggests that the learned Subordinate Judge actually treated the application as being one under Order 9, Rule 13. It is argued that the application was not maintainable under that rule. He relies on the decision in Damodar Misra V/s. Hirnashi Naik A.I.R. 1915 Cal. 821. The learned Subordinate Judge on the other hand relied on Sham Lal Sahu V/s. Ram Kumar Lal 20 Ind.Cas. 67, Bholai Naskar V/s. Alach Naskar (06) 3 C.L.J. 158 and Basirudddin V/s. Sadhu Tanti A.I.R. 1918 Cal. 322. The last two of these latter three cases dealt with the question whether an application under Order 9, Rule 13 would lie to set aside a compromise decree. Mr. D.N. Varma for the opposite party, however, did not try to support this part of the judgment of the learned Subordinate Judge. He argues that it is quite immaterial whether the application actually came under Order 9, Rule 13 or not. In this view it is unnecessary for us to express any opinion on the point. Mr. D.N. Varma, however, argues that the present application in revision is not maintainable because a previous application against the order of the Subordinate Judge dated 20 January 1941 was rejected by this Court.

(3.) It is further argued that the present ease is covered by the authority of the decision of this Court in Sadho Saran Rai V/s. Anant Rai A.I.R. 1923 Pat 483, in which Das and Kulwant Sahay, JJ. held: A Court is not competent, either in review or under its inherent powers, to set aside a compromise decree on the ground that the consent of the parties to the compromise was obtained by fraud. The only remedy of the injured party is to institute a suit to sot aside the decree on the ground of fraud. But where it is found that the aggrieved party had not in fact consented to the compromise the Court has inherent power to set aside a decree based on the compromise.