1. There is no controversy as to the circumstances underwhich the orders now assailed on the ground that they were made withoutjurisdiction, were passed by the Court below. The petitioners were defendantsin an action for recovery of possession of land commenced against them by theplaintiffs opposite party in the Court of the Munsif of Faridpur. That suitterminated in a consent decree made on the 30th March 1906. In 1909 thepetitioners brought a suit in the same Court to set aside the consent decree onthe ground that it had been made on the basis of a compromise assented to bytheir Pleaders in excess of their authority. They also alleged that thecompromise had been brought about by fraud. On the 16th April 1910, the suitwas decreed. It was found that the allegation of fraud was not established butthat the Pleaders for the petitioners had acted in excess of their authority.The result was that the consent decree was set aside. Thereupon, on the 1stJune 1910, the Court made an ex parte order for revival and re-hearing of thesuit. The petitioners then asked the Court to reconsider the matter but theirapplication was refused on the 9th July. We are now invited to set aside theorders made on the 1st June and the 9th July on the ground that they werepassed without jurisdiction. The learned Vakil for the petitioners hascontended that the effect of the setting aside of the consent decree is not arevival of the suit which was terminated by that decree and that the onlyremedy of the plaintiffs opposite party is to institute a fresh suit for theenforcement of their rights even though such a suit might be defeated by theplea of limitation. In support of this position, he has placed reliance uponthe case of Kshetra Mohan Bank v. Man Gobinda Pal (: 6 Ind.Cas. 13; 14 C.W.N. 558). In answer to this contention, reliance has been placedby the learned Vakil for the opposite party upon the decision of this Court inthe cases of Bibi Saloman v. Abdool Azeez (: 6 C. 687; 8C.L.R. 169) and Sarbesh Chandra Basu v. Hari Doyal Singh Rai (: 5 Ind. Cas. 236 [LQ/CalHC/1910/42] : 11 C.L.J. 346 : 14, C.W.N. 451). In our opinion, the viewtaken by the Court below is correct and the rule ought to he discharged.

2. As a matter of principle, there can, in our opinion, beno doubt that when a consent decree has been set aside on the ground that thedecree was passed on a compromise in excess of the authority of the Pleaders ofthe parties, the effect is to revive the original suit which was ended by thecompromise decree, But the learned Vakil for the petitioners has contended thatthis view is opposed to that taken in the case of Kshetra Mohan Barik v. ManGobinda Pal (: 6 Ind. Cas. 13 [LQ/CalHC/1910/132] : 14 C.W.N. 558) upon which herelies. That case, in our opinion, is clearly distinguishable. There the decreemade by consent was set aside in a suit commenced in a Court of equaljurisdiction and the learned Judges appear to have held that a Court of equal jurisdictionhad no authority to direct a revival of the suit which had been originallytried in another Court. Whether the decision in question can be defended onprinciple, may be a matter for serious consideration when another caseprecisely of the same character comes before the Court. It is sufficient forour present purpose to bold that, in this case, as the decree was set aside bythe Court which had originally passed it, no Question can arise as to thecompetency of the Court to direct a revival of the suit which it had tried andwhich had been terminated by the compromise decree. The view we take issupported by the cases of Bibi Soloman. Abdool Azeez (: 6 C.687 : 8 C.L.R. 169); Sarbesh Chandra Basu v. Hari Doyal Singh Rai (: 5 Ind. Cas. 236 [LQ/CalHC/1910/42] : 11 C.L.J. 346 : 14, C.W.N. 451) and Sharat Chandra Ghose v.Kartick Chandra Mitter (9 C. 810; 12 C.L.R. 455), in each of which cases anorder of the description made by the Court in the present case was made,apparently without any question that it was open to the Court to set aside theconsent decree and to direct a revival of the original suit. See also Neale v.Gordon-Lennox ((1902) A.C. 465 : I.S.E.C. (n.s.) 309 : 71 L.J.K.B. 939 : 87L.T. 341 : 66 J.P. 757 : 51 W.R. 140 : 18 T.L.R. 791). We may point out thatthere is analogy to support this view, It cannot be disputed that when an orderof dismissal of a suit is set aside, whether upon review or by reason of anorder made under sections 103 or 108 of the Code of 1882, the effect is torevive the original suit. It cannot also be disputed that in executionproceedings, if the order by which the proceedings have terminated isultimately set aside, even by a separate suit, the result is to restore theproceedings. To take one illustration only, if an execution-sale is set asideon the ground that it has been improperly held, the result is substantially torevive the execution proceedings and to allow the decree-holder to carry themon as if no sale ever took place; and if he makes an application in this behalfno question of limitation arises. [Issurree Dassee v. Abdool Khalak: 4 C. 415; 3 C.L.R. 46; Qamar ud din v. Jawahir Lal 27 A.334; Rahim Ali Khan v. Phul Chand : 18 A. 482]. In our opinion,it would be clearly illogical to hold that it is open to the petitioner to havethe decree by which the original suit was terminated, vacated on the groundthat the decree had been improperly made, and at the same time to insist thatthe plaintiffs are not entitled to an adjudication by the Court upon theirrights.

3. The result, therefore, is that the orders made by theCourt below must be affirmed and this rule discharged with costs. We assess thehearing fee at two gold mohurs.

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Raj Kumar Roy vs.Hara Krishna Chakravarti (12.12.1910 -CALHC)