MOHAMED ATHAR Vs. NARSINGH DAS JAJU

JUDGEMENT

(1.) THIS is a revision against the judgment of the Court of Small Causes. The suit was for the recovery of an amount due on a promissory note alleged to have been executed by the Defendant on 29 -3 -1951. The hearing in the case was fixed for 21 -9 -1951. Before, however, the date of hearing came an application was filed in the Court purporting to be a compromise petition on behalf of both the parties on 6 -9 -1951 and the order of the Judge of that day is to the following effect:

(2.) THE short point to be considered is as to what is the remedy of the Defendant, having regard to the circumstances of this particular case. In all such cases where a compromise is alleged by one party and denied by the other, the procedure has always been to direct the party to file a regular suit, for, the allegation of the party is that the compromise was brought about by practicing fraud upon him. Otherwise the Court has jurisdiction to enquire into the fact as to whether the party did give his consent to the compromise. A distinction should be drawn between a case where the allegation between the parties to an alleged compromise is that he never gave his consent and a case where he alleges that it was obtained by fraud. If there is an apparent consent then the remedy would be only by way of a suit. It, therefore comes to this that where the allegation is that fraud was practiced on the Court, the Court has inherent power to correct its own proceedings. But if the allegation is that fraud was as between the parties, the remedy is only by way of a regular suit. The Privy Council in the case of 'Unnoda Dabee v. Maria Louisa Stevenson, 22 WR 290 (PC) observed: