YUSUF ISMAILBHAI ABDULLABHAI LALJI Vs. ABDULLABHAI LALJI

JUDGEMENT

(1.) This is a notice of motion taken out by defendant No. 10 for an order inter alia that the sale by the Commissioner of this Court of certain salt works at Aden referred to in the Order of October 9, 1930, made by Mirza J. be stayed until the further orders of the Court or in the alternative until some date in April or May 1932. The Order of October 9, 1930, was made by consent of all parties except the plaintiff and defendant No. 7, who were absent, and was made in the same terms in invitum as against them. Under it the Commissioner was ordered to fix the date of sale of the salt works on November 15, 1931, and he was further ordered not to proceed with the settlement of the necessary preliminaries before the sale until July 15, 1931. Liberty was reserved under the order to the parties to apply. All the parties who appeared before me are agreeable that an order should be made in terms of the notice of motion except defendant No. 9 who opposes the notice, and his counsel has raised a preliminary objection that the notice of motion seeks to vary a consent order, and is, therefore, misconceived and cannot lie.

(2.) It is well settled that a consent decree is a mere creature of the agreement on which it is founded, and may be set aside on any ground which will invalidate an agreement between the parties, such as misrepresentation, fraud or mistake. But unless all the parties agree, an application cannot be made to the Court of first instance In the original suit to set aside the consent decree ; it must be done by a fresh suit brought for the purpose. As was pointed out by Beaman J. in Fatmabai V/s. Sonbai, s.c. 13 Bom. L.R. 573, there is good reason why questions of fraud and misrepresentation, etc., should not be opened up by motions in which the Court ordinarily has to rest its decisions upon affidavits. The only alternative which the law allows is an application for review which must of course be filed within time, A consent order can also be impeached on the same grounds which invalidate an agreement (see Huddersfield Banking Company, Limited V/s. Henry Lister & Son, Limited [1895] 2 Ch. 273. A consent order, however, in some points stands on a different footing from a consent decree. A consent order which is in the nature of a judgment on the substantive rights of the parties and on the merits of the case must also be set aside by a regular suit. But an interlocutory consent order which is merely made to facilitate the progress of the suit or to grant interim relief may be set aside on " proper grounds " by an application in the original suit itself: Yusuf V/s. Abdullabhoy Lalji, (1929) I.L.R. 55 Bom. 372. In my opinion, " proper grounds " are grounds such as fraud, misrepresentation or mistake, or any other ground which invalidates an agreement, and the question, therefore, arises whether the Court has any jurisdiction to set aside or vary a consent order on a ground other than a ground invalidating an agreement. In Mullins V/s. Howell (1879) 11 Ch. D. 763 Jessel M.R. stated that the Court has a general control over orders made on interlocutory applications, and in that case a unilateral mistake was considered sufficient to give the Court jurisdiction to discharge an interlocutory order made by consent, though such a mistake is not sufficient to invalidate an agreement. In India also, under Section 22 of the Indian Contract Act, a contract merely cauaed by the mistake of one party as to a matter of fact is not voidable. It was argued on the strength of that decision that the expression " proper grounds " is not necessarily limited to grounds which invaliate an agreement, but I am not prepared to extend the meaning of that expression any further than what has been decided by the cases. In my opinion an interlocutory consent order cannot be varied or set aside merely on the ground of a greater benefit or convenience arising from its variation or from setting it aside, except of course by consent of parties. In Australasian Automatic Weighing Machine Company V/s. Walter [1891] W.N. 170 the Court refused to make an order for enlargement of time for transfer of shares to the plaintiff company by the defendant. In the case before me the interlocutory consent order is sought to be varied on the ground that the sale of the salt works will be more beneficial to the parties if postponed to a later date. That is not a " proper ground " for varying the consent order, and the order is none the less by consent so far as defendant No. 10 is concerned, as he was a consenting party to it, though the order was made in invitum as against the plaintiff and defendant No. 7, the absent parties.

(3.) It was further argued that the consent order could be varied under the liberty to apply which was reserved to the parties, as the reservation of the liberty showed that the order fixing the date for November 15, 1931, was not meant to be final. In my opinion, however, the liberty to apply is merely liberty to carry out the order and not to vary it or set it aside. I do not think, therefore, that the liberty to apply helps defendant No. 10 either.