1. The Opposite Party in this rule made an application tothe Court below to set aside a decree passed by consent in an appeal to whichhe was the Respondent. It is found by the learned District Judge that theAppellant, the Petitioner in this Court, got the service of the notice of theappeal suppressed and had a false and fraudulent vakalatnama, and a petition ofcompromise filed, and that the Opposite Party came to know about the compromisedecree only after process in execution of the decree was taken out. The learnedJudge accordingly set aside the compromise decree and ordered that the appealbe heard. The Petitioner thereupon obtained this rule, and it is contended onIds behalf that a decree by consent can be set aside only by a regular suit,and that at any rate the decree could not be set aside upon an applicationunder Or. 41, r. 19, of the Civil Procedure Code. Reliance is placed upon thecase of Gulab Koer v. Bad-shah Buhadur : 13 C. W. N. 1197: s.c. 10 C. L. J. 420 (1909). in which the questions whether a decree by consentcan be set aside by an application for review or by way of motion, or whether aregular suit is the only, at any rate the most appropriate, remedy, have beenelaborately discussed. It is unnecessary however to consider the broadquestions or the authorities discussed in that case. In the present case,according to the finding of the Judge, there was no consent given by theOpposite Party to the decree : he did not appear in the appeal at all, and infact had no notice of the appeal and had nothing to. do with the vakalatnama orthe petition of compromise. It is therefore not a case where a party gives hisconsent and afterwards seeks to impeach it on the ground that his consent wasobtained by fraud. In Gulab Koers case : 13 C. W. N. 1197 :s. c 10 C. L. J. 420 (1909)., the learned Judge in distinguishing the case ofAnnoda Debi v. Stevenson 22 W. R. 290 (1874) (where the Judicial Committee ofthe Privy Council held that it was competent to the Court to set aside onreview a decree against an infant who was not represented before the Court, andon whose behalf there was no assent to the compromise by any competent person)observed :--" This case is manifestly distinguishable on the ground thatit was in essence an application by a person to vacate a decree which was madein her absence and without her consent. She asked to be relieved from theeffects of a decree to which in substance she was not a party--a condition ofthings entirely different from what we find in the class of cases where aperson who is a party to a suit assents to a consent decree which hesubsequently seeks to impeach on the ground that his assent was obtained byfraud.

2. The decree in the present case therefore could be setaside on review. It is pointed out however that the decree has been set asideupon an application under Or. 41, r. 19. That rule relates to setting aside anorder of dismissal of an appeal for default, and can have no application to thepresent case. It appears that the application to set aside the decree wasoriginally made under Or. 47, r. 1 (the review section), but by a subsequentpetition was amended so as to be an application under Or. 41, r. 19, of theCivil Procedure Code. If, however, the Court had the power to set aside thedecree, we should not interfere merely because it was set aside under a wrongsection, and as for the contention that the proper Court-fee payable upon anapplication for review had not been paid, it could be met by our ordering(under sec. 12 of the Court Fees Act) the Opposite Party to pay the necessaryCourt-fee, if we were of opinion that the Court had no power to set aside thedecree except by an application for review of judgment. We are of opinion,however, that under the circumstances found by the learned District Judge theCourt had an inherent jurisdiction to set aside the decree. Not only has theCourt power, but it is its duty, to set aside a decree obtained by fraudpractised upon the Court, when apprised of it. We agree with the followingobservations made in a case in the Bombay High Court, in which a decree byconsent 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 thatthe suit was declared to have ended by reason of a decree passed with hisconsent. He never consented, and the result has been that there has been fraudcommitted upon the Court. The Court was persuaded to sign a decree to which theDefendant had never consented and that upon the representation that he hadconsented to it. Therefore once the Court is asked to go back upon its ownprocedure, it is not a question whether there is any section in the CivilProcedure Code to warrant the action of the Court amending its proceedings. Itis an inherent power of every Court to correct its own proceedings where it hasbeen misled". [See Basangowda v. Churchigingowda I.L.B. 34 Bom. 408(1910).]

3. We are accordingly of opinion that the order of the Courtbelow though passed under a wrong section should not be set inside.

4. The learned Pleader for the Petitioner invited us to holdthat the findings of the learned Judge are incorrect, but we cannot in revisiongo behind the findings arrived at. As for the contention that the Petitionermay be prejudiced if any proceedings are taken against him upon the findingsarrived at by the Judge, all that we need say is that there will be a fresh andindependent enquiry if any such proceedings are taken against him. The rulemust be discharged with costs one gold mohur.

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Peary Choudhury vs.Sonoo Dass (21.12.1914 - CALHC)