Authored By : Arthur Wilson, Loftus Richard Tottenham

Arthur Wilson and Loftus Richard Tottenham, JJ.

1. This was a rule obtained to show cause why a compromiseshould not be set aside. It was shown that there were two appeals pending inthis Court between the same parties, in one of which the present applicantswere appellants and in the other their opponent was appellant. It appears thata petition was presented by the present applicants stating that the matters indispute in those appeals had been settled by compromise out of Court, andasking in substance that their appeal should be dismissed, and that in the casein which they were respondents a decree should be made against them; and orderswere made for decrees to be passed accordingly. The petition did not set outthe terms of the compromise. The terms, therefore, could not be embodied in thedecrees. The compromise was only referred to. It is now stated that the factsare such that the present applicants are entitled to have that compromisedisregarded, and to have the appeals proceed.

2. Now, the first question which we -have to consider is,supposing the facts to be of such a nature as they are alleged to be, can weentertain this application in its present form We think we cannot. The mode inwhich such a miscarriage, as is said to have occurred in this case, is to bedealt with has been considered on more occasions than one; and it seems to beclear that there are two modes in which the matter can be dealt with. In thefirst place, a suit will lie to set aside the whole transaction. It is notnecessary for us to consider whether in the present case, if a suit werebrought, it ought to be brought in the Mofussil or in the Original Side of thisCourt. It is for the parties to consider that. On the other hand, it has alsobeen held that there is another and a more proper mode of procedure, byapplying for a review of judgment.

3. In the case of Lalji Sahu v. The Collector of Tirhoot 6B.L.R. 649 a decree had been made founded on a compromise. An application for areview was made, and facts were brought to the knowledge of the Court, showingthat the compromise ought to be treated as a nullity, and the Privy Councilappear to us clearly to treat that application for review as a proper mode ofraising the question whether the compromise ought to be treated as a nullity ornot. A similar question came before this Court in the case of Mewa Lall Thakurv. Bhujhun Jha 13 B.L.R. App. 11. That was a case in which the decree wasobtained by fraud, and the parties had proceeded by a suit to set it aside. Thecase was heard by Mr. Justice Phear and Mr. Justice Morris; and judgment wasdelivered by Mr. Justice Phear, who said: "It seems to us that this suithas been to a considerable extent misdirected. It has already been mentionedthat the immediate aim of the plaintiff is to get a decree, which was formerlypassed against him by a competent Court, set aside on the ground that it wasobtained by fraud and collusion. But the proper course for obtaining such anobject as that is to go to the Court which passed the decree either within thetime specified in Section 119 of the Civil Procedure Code, if the circumstancesare such as would justify action under that section, or at any time (so that itbe done with due diligence), if the ground upon which the decree is sought tobe set aside be a good ground for reversing and altering the judgment uponwhich the decree was passed."

4. These decisions seem to us to be authorities for sayingthat a mode of proceeding in such cases is by a suit, but that the more propermode is by an application for review. The question which is now before us arosebefore the Court of Appeal in England in the case of Gilbert v. Endean L.R. 9 Ch.D. 259. In that case the very procedure adopted here was adopted by theparties. A compromise had been arrived at in the course of a suit, and anapplication was made by motion to set aside that compromise and to allow thesuit to proceed, as if the compromise had not been made. The Vice-Chancellorallowed the application. In the Court of Appeal it was pointed out that such anapplication was not the right mode of procedure. We think that is so in thiscountry also, and the proper course is that which we have already pointed out.It occurred to us that we might possibly treat this application as anapplication for review. But whether we can do so without straining mattersunduly we think it unnecessary to say. It is undesirable in the interests ofthe applicants. The materials are very scant; and it might very well happenthat the Judges by whom the application might be dealt with might feel bound todismiss the matter on that ground. We think it better, therefore, to leave theparties to make a fresh application for review if so advised. If they elect tomake that application it ought to be made on very much better materials thanthose before us, and that the whole of the facts in the matter on the bestevidence available should be before the Judges before whom the application ismade.

.

Aushootosh Chandra and Ors. vs. Tara Prasanna Roy(24.04.1884 - CALHC)

+