YUSUF I A LALJI Vs. ABDULLABHOY LALJI (NO2)

JUDGEMENT

(1.) In this case, by consent of the parties an order was made on Daosmbar 11. 1928, authorising the receiver in the suit to pay the sum of Rs. 40,000 to defendant No. 13. Defendants Nos. 4A, 4B, and 6 thereafter appeared before me in chambers and applied for setting aside that order on the ground that the order was obtained on certain false representations and promises. The application was dismissed by me on the ground that it was a consent order and could not be set aside except by 1 proceedings properly framed for that relief. After this, these defendants presented an application for review of my order. When that review application came before me it was contended on behalf of defendant No. 13 that no review lay. In answer to that contention Mr. Taraporewala argued that even if technically an application for review did not lie the Court had jurisdiction to entertain the application under its inherent jurisdiction. After hearing the arguments, I delivered a judgment in which I held that under the inherent jurisdiction of the Court it was open to me to entertain the application for setting aside the consent order. As it seemed to me that the case depended on a question of fact I adjourned the application into Court and allowed the parties to argue the question as to whether the consent order complained of could be set aside by an application.

(2.) The question which I have to decide is whether an interlocutory order made by consent of the parties in a suit can be set aside by an application in the same suit on proper grounds, or whether as Mr. Kania who represents defendant No. 13 contends a suit must be filed to have the consent order set aside.

(3.) It is conceded and established by authority that the Court has jurisdiction to set aside a consent decree upon any ground which would invalidate an agreement between the parties. As was observed in Wentworth V/s. Bullen (1820) 9 B. & C. 840 (p. 850):- The contract of the parties is not the less a contract, and subject to the incidents of a contract, because there is superadded the command of the Judge. It is equally established that a party must file a suit properly framed to set aside a consent decree or judgment which until it is set aside acts as an estoppel. It is unnecessary to refer to the reported decisions in England and in this country on this point.