TMI Blog1929 (7) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... ompromise purports to be a compromise between the plaintiff and defendants 3 and 4. This is the compromise which we have to consider in this case. A decree for sale of the mortgaged property was eventually passed in terms of the compromise against defendants 3 to 5 and ex parte against defendant 6 and against defendant 1 on his admission on 31st January 1927. Though the compromises were, filed on 28th January 1927,. decree was passed on 31st January 1927, There is nothing on the record to show why the suit was not disposed of on 28th January 1927, the date on which the compromises were filed. The decree which was passed on 3lst January 1927 was a preliminary decree. 3. Ram Sarup and others (sons of Badri Prasad since deceased) applied for a final decree under 0.34, B. 5, Sch. 1, Civil P. C, on 17th March 1928. This application was opposed by Mohammad Raza (defendant 4) on the ground that he was no party to the compromise dated 28th January 1927 and that his name had been wrongly entered in the preliminary decree and should not be entered in the final decree. He contended that the decree dated 31st January 1927 was not anyhow binding on him and asked the Court to take action unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A. I. R. 1926 Oudh 315, every Court has an inherent power to correct its own proceedings. It can set aside its own decree based on a compromise found to have been filed by a person having no authority to make or present the compromise. It is immaterial whether this power is to be found in S. 151 or S. 153, Civil P. C, or whether it is a power in review. The decision of the Bombay High Court in the case of Basangowda Hanmantgowda v. Churchigirigowda Yogandowda [1910] 34 Bom. 408- 5 I. C. 968=12 Bom. L, R. 223 was followed in that case. We should like to note that the question of limitation was not considered in those cases. We have sent for the record of the case reported in Devendra Nath v. Ram Rachpal (supra). The record shows that the decree in respect of which the application was made under S. 151, Civil P. C. was passed by the District Judge on appeal on 21st January 1925. The application under S. 151, Civil P. C, was made on 20th March 1925. The application was thus made in that case within the period of limitation provided for appeal (or review) from the decree passed in that case and the decree had not become final till then. 7. The respondents learned counsel contends th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat his name might be removed from the decree after the period of limitation prescribed for appeal or review has expired and the judgment and the decree have thus become final? Opinion Stuart, C.J. 10. The two questions which have been referred to the Full Bench under the provisions of S. 14 of Local Act 4 of 1925 are these : (1) Is it open to a party to a suit to appeal from the decree passed in the suit on the basis of a compromise purporting to be on his behalf when the person verifying or admitting the said compromise had no authority to eater into it on his behalf ? (2) Is it open to such a party in the suit to invoke the inherent power of the Court to get the judgment and the decree amended under Ss. 151, 152 and 153, Civil P. C. so that his name might be removed from the decree, after the period of limitation prescribed for appeal or review has expired and the judgment and the decree have thus become final ? 11. The application under S. 151 covers much ground. Before it can be decided it would appear that information should be given to the Bench which at present is not before it. The applicant has not so far filed an affidavit stating when he received infor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e have thus become final? 13. On the first of these questions the argument of the learned counsel for the applicant is that having regard to the provisions of sub-S. 3, 3. 96, Civil P. C an appeal from the decree passed in this case being a decree with the consent of the parties was excluded by those provisions. The argument in answer is that having regard to the facts which exist behind the decree and the circumstances in which it came to be passed the decree in question in this case must be treated as a decree not passed with the consent of the parties. Speaking for myself I am inclined to accept the argument advanced on behalf of the applicant. It is admitted that the decree on the face of it is a decree passed with the consent of the parties. It is true that if we are to enter into the merits of the circumstances in which the decree in question came to be passed it might be found that the decree is a nullity; but I should think that the proper procedure for discovering the nullity or otherwise will be to initiate proceedings under S. 151 or by way of review of judgment. But if the decree exfacie is a consent decree it seems to me that an appeal is barred. It appears to me to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S. 151, Civil P. C. rectifying an error injuriously affect the other party where he has obtained an advantage in his favour by lapse of time. If this question is answered in the affirmative that may be a reasonable ground on merits to refuse relief under that section. In the present case though the applicant does not state specifically in his application to the Court below the ultimate relief which he claims but obviously he cannot get more than an order setting aside the so-called compromise decree in so far as he is concerned and restoring the suit in which that decree came to be. passed for trial de novo on merits as against him. If he were asking for the dismissal of that suit altogether and thus compelling the plaintiff to institute a fresh suit for obtaining the same relief and if the Court were of opinion that a fresh suit would be barred by time or otherwise I am quite clear in my mind that such a prayer would be refused. But none of these considerations arise at the present stage of the case. As observed by the Hon'ble Chief Judge these matters and matters similar to them are the grounds on which the Court would be justified in basing its opinion when it comes to form ..... X X X X Extracts X X X X X X X X Extracts X X X X
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