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Civil Miscellaneous No. 2956/C of 1969 in Regular Second Appeal No. 398 of 1968. decided on 19th April 1972.

r. 1-- Withdrawal of appeal by appellant ‑ Subsequent petition under S. 151 that order of withdrawal may be recalled and appeal be re‑admitted to regular hearing because respondent had practiced fraud on appellant‑Held, neither provisions of S. 151 nor of O. XLVII, C. P. C. could be invoked; proper remedy, to file a regular suit on basis of fraud.

No doubt fraud vitiates the most solemn proceedings, the Courts have always kept in view the distinction between cases where a judgment is obtained by practicing fraud on the Court and where fraud is alleged to have been practiced on a party. In Grindlays Bank Limited v. Murree Brewery Company Limited P L D 1954 Lah. 745 the Court has jurisdiction to pass an order setting aside the judgment obtained by fraud but in the latter class of cases, Order XLVII, rule 1, C. P. C. does not furnish a proper remedy for setting aside a decree on the ground of fraud. Even section 151 cannot come to the rescue of such a party. Firstly, because section 151 is a residuary section and is not to be resorted to unless it is established that there is no other remedy open for redress. Secondly, the allega tions of fraud can be gone into 9n a regular suit and not in summary proceedings because such an enquiry will not only be extraneous to the suit itself but also it should be hard on the losing party to be held guilty of fraud in summary proceedings under section 151, without having a remedy by way of appeal to challenge that finding.

Grindlays Bank Limited v. Murree Brewery Company Limited P L D 1954 Lah. 745; Keshav Ramkrishna Bhatt Phadke v. Subha Mgnga Naik and others A I R 1939 Bom. 490 and Chutur Prasad Sah v. Mst. Bishni Kuer and another A I R 1943 Pat. 13 ref.

Gul Muhammad Butt for Petitioner.

Khalid Farooq for Respondents Nos. 1, 6 and 7.

This is a petition under section 151 of the Code of Civil Procedure, praying that the order dated the 13th of February 1969, permitting the withdrawal of Regular Second Appeal No. 398 of 1968, filed by the petitioner as against the respondents, be re‑called and the appeal re‑admitted to a regular hearing. The petition is grounded on the averment that as a matter of fact, the respondent-vendee, Tajammul Hussain, and the National Industrial Co‑operative Bank, respondent No. 5 (the subsequent transferee of the land forming subject‑matter of the suit), had entered into an agreement with the petitioner as a result of which the petitioner made an application before this Court for withdrawal of the appeal, which was thus got dismissed as withdrawn and that having obtained that order in their favour, the respondents have resiled from the compromise agreement and have failed to honour their commitment and the petitioner having been left with no other remedy be permitted to withdraw the prayer for withdrawal and the consequential order of dismissal be set aside and the appeal be heard on merits. Mr. Gul Muhammad Butt, Advocate, relied on Grindlays Bank Limited v. Murree Brewery Company Limited (P L D 1954 Lah. 745) in support of his contention.

2. The petition is opposed by the contesting respondents on whose behalf it has been argued that it has neither been alleged nor proved that fraud has been practiced on the Court and, therefore, the proper remedy, if at all, for the petitioner is to assail the consent decree for dismissal by way of a regular suit on the basis of fraud and not by these summary proceedings under section 151 of the Code of Civil Procedure. He maintains that Grindlays Bank Limited v. Murree Brewery Company Limited is not an authority for the view that even where fraud has been practiced on a party to the proceedings, resort can be bad to section 151 or Order XLVII, rule 1, Code of Civil Procedure. He has referred me to Keshav Ramkrishna Bhatt Phactke v. Subba Manga Natk and others (A I R 1939 Bom. 490) and Chutur Prasad Sah v. Mst. Bishunt Kuer and another (A I R 1943 Pat. 13).

3. No doubt fraud vitiates the most solemn proceedings, the Courts have always kept in view the distinction between case where a judgment is obtained by practicing fraud on the Court and where fraud is alleged to have been practiced on a party. In the former case, as held in Grindlays Bank Limited v. Murree Brewery Company Limited the Court has jurisdiction to pass an order setting aside the judgment obtained by fraud but in the latter class of cases, Order XLVII, rule, 1. C.P.C. does not furnish a proper remedy for setting aside a decree on the ground of fraud. Even section 151 cannot come to the rescue of such a party. Firstly, because section 151 is a residuary section and is not to be resorted to unless it is established that there is no other remedy open for redress. Secondly, the allegations of fraud can be gone Into in a regular suit and not in summary proceedings because such an enquiry will not only be extraneous to the suit itself but also it would be hard on the losing party to be held guilty of fraud in summary proceedings under section 151, without having a remedy by way of appeal to challenge that finding. Learned Counsel for the petitioner has not been able to convincingly argue that in this particular case fraud was in any manner practiced on the Court. Bearing in mind the principle enunciated above, I hold that the present application is not maintainable and I dismiss the same. However, the petitioner will not be precluded from seeking his remedy by way of a regular suit, if so advised. There will be no order as to costs.

K.B.A. Petition dismissed.

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