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Civil Rule No. 129 of 1957, decided on 24th June 1957.
Solenama obtained by fraud practised upon Court Court has inherent jurisdiction to set aside solenama‑Decree obtained by fraud practised upon party‑Regular suit proper remedy for setting aside decree‑Civil Procedure Code (V of 1908), S. 151.
Where in an application under section 151, Civil P. C., for setting aside a solenama which was obtained by fraud and filed in a Court on behalf of the applicant who was not at all aware of the solenama and did not sign it and never authorised anybody to file the solenama, it was contended by the opposite party that solenama could be set aside by way of a regular suit and not by an application under section 151, Civil P. C.
Held, that under the circumstances the Court had an inherent jurisdiction to set aside the solenama. Not only has the Court power, but it is its duty when apprised of it to set aside a decree obtained by fraud practised upon the Court.
But where fraud is not practised upon the Court but upon the party as in a case where a person who is a party to a suit assents to a consent decree which he subsequently seeks to impeach on the ground that his assent was obtained by fraud, the proper course for having set aside such decree is by way of a regular suit and not by an application under section 151, Civil P.C.
Akina Bibi and others v. Mahammad Ali Shah and others 45 C W N 392 and Peary Choudhury v. Sanoo Das 19 C W N 419 fol.
Surendra Chandra Sen v. Jogesh Chandra Sen and another 43 C W N 969 distinguished.
Sadhu Saran Rai v. Anant Rai I L R 2 Pat. 731 ; Sheodhar Prasad Singh v. Ramdeo Prasad Singh I L R 13 Pat. 165 ; Gulab Koer's case 13 C W N 1197 and Annada Debi v. Stevenson 22 W R 290 ref.
Bhagirath Chandra Das for Petitioner.
Abdul Hye Chowdhury for Opposite‑Parties.
This Rule is directed against an order of the Munsif, 3rd Court, Satkhira, dated 30th November 1956, rejecting a solenama alleged to have been filed in Sale‑set‑aside Case No. 202 of 1955. The sole question urged by the learned Advocate for the petitioner is whether such solenama could be set aside on an application under section 151 of the Code of Civil Procedure.
The facts of the case are as follows : There was a raiyati holding bearing a jama of Rs. 16 and odd and comprising an area of 26 bighas which was sold in execution of rent decree against one Ganesh Chandra Basu, the petitioner before this Court, for Rs. 90 and purchased by the decree‑holder opposite party No. 4 for Rs. 110. Under this raiyati holding, there was an under raiyati bearing a jama of Rs. 26 and odd which stood in the names of three Laskars (Ekim Laskar, Tarai Laskar and Esim Laskar). This under‑raiyati was sold in the year 1932 in execution of a mortgage decree and was purchased by one Singha (Akhil Chandra Singha) and another for Rs. 500. The Singhas thereafter sold about 20 bighas of this area to one Lal Chand Gazi and others by two registered kabalas. The under‑raiyats, opposite parties Nos. 1 to 3, brought a case under section 174 of the Bengal Tenancy Act for setting aside the said sale. This case ended in a solenama between the two heirs of the original under‑raiyats Bishu and Samir, and the decree‑holder auction‑purchaser. Thereafter Ganesh Chandra Basu brought another Miscellaneous Case, being Miscellaneous Case No. 202 of 1956, for setting aside the same sale and in that case a solenama purported to have been signed by Bishu Laskar, Samir Laskar, Latif Laskar; the 3 opposite parties, and the landlord's lawyer, was filed on 25th August 1956. The terms of the solenama, in brief, are
" 1. That the sale would be set aside.
2. That Rs. 275 would be paid to the Laskars.
3. That legal interest of all parties would remain in tact."
This solenama was accepted by the Court on 25th August 1956 and 25th September 1956, was fixed for passing final order. On 3rd September 1956, the opposite party No. 1 filed an application under section 151 of the Code of Civil Procedure for setting aside the solenama filed in Miscellaneous Case No. 202 of 1955, on the ground of fraud. It was alleged that he was not a party to the solenama, that the solenama was not signed by him, that he did not authorise the lawyer Mr. Mitra to sign. the solenama and to file it on his behalf and that the solenama was filed by the pleader in collusion with the decree‑holders in order to deprive the petitioner of the fruits of the previous solenama.
The learned Munsif, by his order, dated 30th November 1956, accepted the contention of opposite party No. 1 and set aside the solenama. This Court was thereafter moved in its civil revisional jurisdiction and the present Rule was issued.
Mr. B. C. Das appearing on behalf of the petitioner has contended before this Court that the learned Munsif acted illegally and with material irregularity in the exercise of his jurisdiction in entertaining an application under section 151 of the Code of Civil Procedure for setting aside the solenama on the ground of fraud and he also acted illegally in setting aside the said solenama on that application under section 151. Mr. Das cited the case of Surendra Chandra, Sen v. Jogesh Chandra Sen and another (43 C W N 969) in support of his contention.
Mr. Abdul Hye Chowdhury for the opposite parties Nos. 1 and 2 has contended that the decision cited by the learned Advocate for the petitioner does not, apply to the facts of the present case and that the learned Munsif was quite justified in setting aside the solenama. He cited the cases of Akina Bibi anal others v. Mahammad Ali Shah and others (45 C W N 392) and Peary Choudhurv v. Sanoo. Das (19 C W N 419).
From the order‑sheet, it appears that the case was fixed for 25th' August 1956, for hearing. On that date, the case of opposite party No. 2, that is, opposite party No. 1 in this petition, is that his instruction to the lawyer was to apply for an adjourn ment but that‑the lawyer instead of applying for an adjournment filed the hazira. The adjournment sought by the decree‑holder was, however, rejected. On that date, opposite party No. 4 Latif Laskar appeared and all the parties filed a joint petition of compromise. The compromise petition is purported to have been signed by opposite party No. 1 Bishu Laskar, opposite party No. 3 Samir Laskar and by the lawyer of opposite party No. 4 Latif Laskar. The solenama was a conditional one and it was accepted by the learned Munsif and he fixed 25th September 1956, for final orders. In the meantime, on 3rd September 1956, the opposite party No. I Bishu Laskar filed a petition before the Court under section .151 stating that he was not at all aware of the solenama and, he did not sign the solenama and did not even authorise his lawyer to file such a solenama. He further stated that opposite party No. 4 Latif Laskar was also' not present .at Satkhira on, that date and that the power purported to have been filed on his behalf was a forged and fraudulent document and that the lawyer in collusion with the decree‑holder played false with the Court and filed solenama against the interest of opposite party No. 1. .Evidence was led on this question and the learned Munsif ,by his order, dated 30th November 1956, held that he was satisfied that fraud ,was exercised and that the solenama filed on 25th August 1956, was not the outcome of any mutual agreement between the parties and that except opposite party. No. 3 no one else was present'" it the time of the talk of the compromise and his 'consent was also obtained upon false statement of facts. The learned Munsif referred to the evidence of the lawyer who was examined in this proceeding and who said that the interest of the opposite party No. I created by the solenama filed before would stand as a result of the solenama filed on 25th August 1956. The learned Munsif has also found that Latif Ldskar was not present in Court or anywhere in Satkhira and his name did not appear in the hazira filed on that date and his presence for the purpose of filing the solenama is absurd. The learned Munsif has again found that opposite party No. 1 was absent from Court when the compromise was talked about and there was absolutely no reason to hold that the solenama was drafted and filed in his presence: So, the learned Munsif accepted the story of fraud as alleged by the opposite party and set aside the solenama.
The only question for decision is whether such a solenama could be set aside on an application under section 151 of the Code of Civil Procedure. The finding of fraud on the facts stated above has not been challenged by the learned Advocate for the petitioner in his grounds of the petition moved before this Court. He only relies on the case of Surendra Chandra Sen v. Jogesh Chandra Sen and another, where Mukherjea, J., held as follows :‑
" The proper course for having a consent decree set aside and vacated on the ground of fraud is by way of a regular suit and not by an application under section 151 of the Civil Procedure Code which has no application, at least where the fraud is practised not upon the Court but upon the party, e.g., where there was apparent consent but the consent is said to have been obtained by fraud and misrepresentation."
The facts of that case are, however, quite different. The plaintiff who was opposite party No. 1 in that case brought a suit for partition. The first defendant was his brother and second defendant was his cousin. A preliminary decree , was passed on consent and the shares of the parties were declared. A commissioner was appointed to affect the partition and he made certain allotments. After the commissioner submitted his report, a petition of compromise purported to have been signed by all the parties was filed in Court which was followed by a final decree. Thereafter the parties possessed their respective allotments in terms of the final decree for several years. About 8 years after the final decree, the plaintiff came forward with an application under section 151 of the Code of Civil Procedure and prayed that the compromise decree might be set aside on grounds specified therein. Their Lordships referred to an earlier decision of the Calcutta High Court and found that such a decree could not be set aside on an application under section 151 and, at page 971 of the report, their Lordships observed as follows :‑
" We are however definitely of the opinion that section 151 of the Code of Civil Procedure is not the section which is applicable in such cases. In the first place, that section, being a residuary section, should not be applied at all unless there is no other remedy open to the litigants. In the second place, the matter for inquiry in such matters is 'something extraneous to the suit itself and the same kind of investigation is necessary as in a contested suit. It would certainly be hard on the losing party if, he is convicted of fraud by, a summary proceeding like this and yet had no remedy byway of appeal against that finding. It is contended however on behalf of the opposite parties that although a remedy by way of a suit would be the proper remedy when the petitioner impeaches the decree on the ground of, fraud practised, upon him but, nevertheless, when there is fraud practised upon the Court itself, the Court under its inherent jurisdiction may grant relief. Reliance has been placed for this view upon a decision of this Court in Peary Chowdhury v. Sanoo Dass, and two decisions of the Patna High Court which are to be found in the case of Sadhu Saran Rai v. Anant Rai ((1) I L R 2 Pat. 731) and Sheodhar Prasad Singh v. Ramdeo Prasad Singh (I L R 13 Pat. 165). All these decisions proceed on the footing that there is inherent power in a Court to correct its own proceeding when it has been misled into passing an order by the fraud of any party to the suit."
Their Lordships also discussed the facts of the case and were of opinion that it could not be said that there was any fraud practised upon the Court which would justify it in exercising its inherent power under section 151 of the Code. At page 972, however, Mukherjea, J., made a distinction between the factum of consent and its reality and he observed :‑
" It is stated that when an order is obtained from the , Court on the allegation that the parties have assented to it and it is asserted by.one party later on that he never gave his consent, it was open to the Court to investigate the matter and review its own order if it was satisfied that the party did not give his consent at all. But when there is apparent consent given by a party to the suit and he impeaches the decree afterwards on the ground that his consent was obtained by fraud, in such cases the Court has got no inherent jurisdiction to set aside the previous decree or order and the remedy of the parties would be by way of a suit."
Now the above proposition laid down by Mukherjea, J., as quoted above, clearly supports the opposite party. In this case also, it is not the case of the opposite party No. 1 that any consent was taken from him by any misrepresentation or fraud. The case is that he never knew of the solenama, he never authorised any lawyer to file the solenama and he never signed the solenama. One Kalimuddin Gazi was examined and he stated that he signed the solenama at the instance of his lawyer. This shows how much interest the lawyer was taking in this matter. There is also a clear finding by the learned Munsif that the opposite party No. 4 did not come to Satkbira at all, although it appears that the power on his behalf was filed on the same date and was accepted by the same lawyer who acted for opposite party No. 1 in this case. Moreover, no final order on the solenama was passed by the Court and the matter was fixed for 25th September 1956, for final order. It is not a case where a decree had been drawn up. Again there was no admission or consent on the part of opposite party No. 1. In a case like this, an application under section 151 is the proper remedy. Even in case of decree also, the Courts have taken the view that in appropriate circumstance an application under section 151 would be sufficient.
In the case of Peary Choudhury v. Sanoo Dass, their Lord ships, Chatterjee and Greaves, JJ., observed at page 422 of the report as follows
" We are of opinion, however, that under the circumstances found by the learned District Judge the Court had an inherent jurisdiction to set aside the decree. Not only has the Court power, but it is its duty to set aside a decree obtained by fraud practised upon the Court, when apprised of it. We agree with the following observations made in a case in the Bombay High Court, in which a decree by consent was set aside in a summary manner upon an application by the defendant :-
What the defendant says is that there was a suit against him, and that the suit was declared to have ended by reason of a decree passed with his consent. He never consented and the result has been that there has been fraud committed upon the Court. The Court was persuaded to sign a decree to which the defendant had never consented and that, upon the representation that he had consented to it. Therefore, once the Court is asked to go back upon its own procedure, it is not a question whether there is any section in the Civil P. C., to warrant the action of the Court amending its proceedings. It is an inherent power of every Court to correct, its own proceed ings where it has been misled."
In that case also, the finding of: the learned Subordinate Judge was that there was no consent given by the opposite party to the decree as in the present case and the opposite party did not appear in the appeal at all. Their Lordships in that case further explained, at page 421 of the report, the earlier, case. on' the point, namely, the case of the Gulab Koer (13 C W N 1197) as follows.:‑
" It is therefore not a case where a party gives his consent and afterwards seeks to impeach it on the ground that his consent was obtained by fraud. In Gulab Koer's case, the learned Judge, in distinguishing the case of Annada Debi v. Stevenson (22 W R 290) where the Judicial Committee of Privy Council held that, it was competent to the Court to set aside on review a decree against an infant who was not represented before the Court, and on whose behalf there was no assent to the compromise by any competent person, observed; This case is manifestly distinguishable on the ground that it was in essence an application by a person to vacate a decree which was made in her absence and without her consent. She asked to be relieved from the effects of a decree to which in substance she was not a party‑a, condition of things entirely different front what we find in the ;class of cases where a person who is a party to a suit assents to a consent decree which he subsequently seeks to impeach on the ground that his asset was obtained by fraud."
In the case of Akina Bibi and others v. Muhammad Ali Shah and others, Henderson, J., also held :‑‑
" Where it is alleged that fraud was practised on the Court and fraud in the form that the party complaining was shown to be one of the plaintiffs in a previous suit. and to have agreed to a consent decree, whereas he was completely ignorant of the suit, the Court has, according to the preponderance of authority in the Calcutta High Court, inherent power, to proceed under section 151, Civil P. C."
In that case Henderson. J., also referred to the case of Peary Chowdhury v. Sanoo Das and quoted the following observation from that case :‑
Not only has the Court power but it is its duty, to set aside a decree obtained by fraud practised upon, the Court, when apprised of it."
I respectfully agree with the view taken by Henderson" J., and Chatterjea, J., in the cases reported in 45 C W N 392 and 19 C W N 419 respectively. Even the decision of Mukherjea, J.
In the case of Suresh Chandra Sen v. Jogesh Chandra Sen and another, relied on by the learned Advocate for the petitioner, does not help him in the facts of the present case rather, it supports the opposite party. Moreover, in this case there was no final order only the solenama which was sought to be set aside by the opposite party No. 1 was accepted. Even before the matter was taken up for final consideration, the opposite party No. 1 moved the Court that there was fraud exercised on that Court and also on him and in the circumstances the solenama could not be accepted. The learned Munsif accordingly accepted that, case and set aside the solenama. In these circumstances, I do not consider it a fit case where the Court should interfere under section 115 of the Code of.Civil Procedure and, in my opinion, the learned Munsif was perfectly justified in entertaining ,the application under section 151 in the special circumstances of the case.
The Rule is accordingly discharged with costs.
Z.A.S
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