CHEROAN ALIAS MALU Vs. DEVAKI ALIAS AMMINI KOVILAMMA

JUDGEMENT

(1.) The plaintiff in O. S. No. 422 of 1950 on the file of the Court of the Munsiff of Tirur filed I.A. No. 781 of 1958 under S.151 of the Code of Civil Procedure for restoration of the suit after setting aside the compromise decree passed therein. She alleged that she did not sign the razi and her signature therein was probably put in by her brother, who was conducting the litigation on her behalf. The lower court accepted that allegation and allowed the petition setting aside the compromise decree and restoring the suit to file. The defendants respondents have come up before this Court in revision.

(2.) It is settled law that if by the compromise a fraud was played upon the court, the court could, under S.151 of the Code of Civil Procedure, set aside the compromise decree obtained by such fraud. On the other hand, if the fraud was only on the party who seeks to set aside the compromise decree, then the remedy of the party is not by way of an application under S.151 of the Code of Civil Procedure. Therefore, the question for consideration in this Civil Revision Petition is whether the alleged, fraud was a fraud on the petitioner only or it was a fraud on the court as well. That depends on the further question whether the petitioner actually put her signature in the razi as a result of the fraud or somebody else put her signature and thus played a fraud on the court. If it is the former, then the remedy of the petitioner is not by way of a petition under S.151 of the Code; if it is the latter, the present petition is competent. If any authority for this position is required, the decision of this Court in Taj Glass Works Ltd. v. Ushar Trading Co. ( 1958 KLT 840 ) may be referred to.

(3.) The petitioner has been examined in the lower court as Pw. 1. She has deposed that she did not sign the compromise petition. She has stated further that she did not know anything about the compromise. The 2nd respondent has been examined on the side of the respondents. He has given evidence that the razi petition was signed by the petitioner at her residence on a Sunday. In another part of his deposition he has said that the razi petition was filed in court on the same day as it was signed, which could not have been true, because the day on which the petitioner signed the razi petition, according to the witness, was a Sunday. Two or three persons are alleged to have mediated and the compromise was the result of such mediation. None of the mediators has been examined. In those circumstances, the lower court, after a comparison of the signatures of the petitioner in the vakalath and other papers with her signature in the razi, came to the conclusion that the razi was not signed by her. I do not think that that conclusion is far from right, in view of the evidence and the circumstances of the case.