SURESH CHANDRA SEN Vs. JOGESH CHANDRA SEN

JUDGEMENT

(1.) This rule is directed against an order dated 23 January 1939 passed by the Subordinate Judge of Dinajpore under Section 151, Civil P.C., by which a final decree passed on compromise in a suit for partition was set aside on the ground of fraud. The facts are not indispute. The plaintiff who is opposite party 1 instituted a suit for partition in the Court of the Subordinate Judge of Dinajpore some, time in the year 1926 for partition of certain homestead and jote lands belonging jointly to him and to the two defendants. Defendant 1 is his brother and defendant 2 who has since died was his cousin. On 21 December 1927 a preliminary decree was passed on consent and the shares of the plaintiff and defendants 1 and 2 in the suit properties were declared to be 7 annas, 4? annas and 4? annas respectively. The work of making the partition was at first given to certain arbitrators, but that having failed a pleader commissioner named Makham Lai Sen was appointed to make the partition. He submitted his report on September 1929. On 7 November 1929 a petition of compromise purporting to be signed by all the parties was presented to the Court and upon that a decree was passed. With regard to the jote lands the allotments made by the commissioner were kept intact, but with regard to the homestead certain alterations were made which are set out in the several paragraphs of the compromise petition and were further depicted in a sketch map attached to the solenama. In para. 5 of the petition of compromise it was provided that defendant 2 would relinquish his share in the homestead in favour of the plaintiff for a consideration of Rs. 1127 only which was to be paid to him within six months from the date of the final decree. Apparently the parties possessed their respective allotments in terms of the final decree for several years and defendant 2 did relinquish his share in favour of the plaintiff for which a sum of Rs. 1127 was paid to him in April 1930.

(2.) On 26 January 1938, which was more than eight years after the decree was passed, the plaintiff came forward with this application purporting to be one under Section 151, Civil P.C., and he prayed that the compromise decree might be set aside oh the grounds specified therein. The allegations in substance were that defendant 1 who was a pleader was entrusted with the task of preparing the solenama and he got the solenama drafted during the absence of the plaintiff by one Binode, a pleader's clerk. As soon as the plaintiff came to Court the solenama was presented to him for his signature and the plaintiff could not realize at that time what the contents of the petition were. The plaintiff states that he is perfectly sure that para. 10 of the solenama was not there when he put his signature nor was the sketch map attached to the petition. His case was that he agreed to the alteration of the allotments made by the commissioner to this extent, namely that block C should be exchanged for block 1, but beyond that he did not assent to any other change.

(3.) Defendant 1 traversed all the allegations of the plaintiff and his case was that the plaintiff himself had a hand in preparing the draft and the sketch map and he signed the solenama after fully knowing its contents. The Subordinate Judge accepted the plaintiff's story to some extent and finding that there was a fraud committed on the Court, he set aside the final decree and directed that the suit should be re-heard from the stage at which the solenama was filed. It is against this order that this rule is directed. Mr. Sen who appears for the petitioner has contended before us that the Court below had no jurisdiction to set aside the compromise decree under Section 151, Civil P.C., and the remedy of the plaintiff, if any, lay in a separate suit. In the second place, he has argued that the facts found by the Court below do not amount to fraud practised either upon the plaintiff or upon the Court and as such the order was passed illegally and with material irregularity. In our opinion, both these contentions are sound and must prevail.