UMMAL KANNU Vs. AMRITHAN

JUDGEMENT

(1.) The defendant in O.S. No. 507 of 1121 of the Padmanabhapuram Munsiffs Court is the Revision Petitioner in this case. The suit was decreed on the basis of a compromise petition which purported to have been signed by the plaintiffs and the defendants. The defendant filed a petition to set aside the decree alleging that she had not signed the compromise petition. The lower court dismissed the petition on the ground that it is not maintainable. According to the lower Court the remedy of the petitioner is a fresh suit. The lower Court has relied on the ruling reported in 26 TLJ 452. That was a case in which the records of the case showed that the defendant appeared in Court and confessed judgment. The defendant contended that he did not appear in Court and confess judgment and that it was a case of false personation and fraud practised by the plaintiff. It was held that the decree passed in the case was not an ex parte decree and that an application under O. 9 R. 13 would not lie. It was not held that the allegation of fraud and false personation was not sustained. For these reasons the petition was dismissed. I do not think that that ruling applies to the facts of this case.

(2.) 29 TLJ 1057 (Full Bench) is a direct authority for the position that when a party to a compromise decree claimed the fact of his having signed the compromise petition the Court has got jurisdiction to investigate the matter under S. 115 of the Civil Procedure Code (Travancore). It was held in that case that a distinction has to be drawn between cases where a fraud is practised upon the Court and cases where a fraud is practised upon the party. Where the question is whether there was consent in fact to the compromise there is power on the Court to investigate the matter under S. 115 CPC and to set aside the decree if it is satisfied that a party never in fact consented to it but that the Court was induced to pass the decree on the fraudulent representation made to it that the parties had consented to the same. But where the parties have filed a compromise petition thus admitting consent as a matter of fact and when one of the parties alleges that this consent was procured by fraud this matter cannot be considered under the inherent powers of the Court. In the light of this ruling it has to be held that this petition filed by the defendant is maintainable.

(3.) The order of the lower court is therefore set aside and the petition of the defendant is remanded to the lower court for disposal on the merits. The Revision Petition is allowed. There will be no order as to costs.