OUDH HIGH COURT

                                                Mohammad Raza

                                                         Vs

                                                   Ram Saroop

                                          Application No. 61 of 1928

                                (Stuart, C.J. and Wazir Hasan and Raza, JJ.)

                                                   19.07.1929

                                                     ORDER

Misra and Srivastava, JJ.
1. This is an application in revision under Section 115, Civil Procedure Code against an order of
the Subordinate Judge, Bahraich, dated 10th November 1928 dismissing an application made by
the applicant (Mohammad Raza) under Sections 151 and 152, Civil P. C. One Debi (Badri),
Prasad father of Ram Sarup and others (opposite party) brought a suit against Saiyid Ali Haider,
Mohammad Raza and others on the basis of a mortgage-deed dated 23rd October 1918,
Mohammad Raza was defendant 4 in that suit. The claim was resisted by the defendants
including defendant 4 (Mohammed Raza). Defendant 2 was discharged and his name was struck
off the plaint

2. The Court recorded some proceedings on different dates and then two compromises were filed
on 28th January 1927. One compromise was filed by the plaintiff and defendant 5. The other
compromise purports to be a compromise between the plaintiff and defendants 3 and 4. This is
the compromise which we have to consider in this case. A decree for sale of the mortgaged
property was eventually passed in terms of the compromise against defendants 3 to 5 and ex
parte against defendant 6 and against defendant 1 on his admission on 31st January 1927.
Though the compromises were, filed on 28th January 1927, the decree was passed on 31st
January 1927, There is nothing on the record to show why the suit was not disposed of on 28th
January 1927, the date on which the compromises were filed. The decree which was passed on
3lst January 1927 was a preliminary decree.

3. Ram Sarup and others (sons of Badri Prasad since deceased) applied for a final decree under
O.34, B. 5, Sch. 1, Civil Procedure Code on 17th March 1928. This application was opposed by
Mohammad Raza (defendant 4) on the ground that he was no party to the compromise dated 28th
January 1927 and that his name had been wrongly entered in the preliminary decree and should
not be entered in the final decree. He contended that the decree dated 31st January 1927 was not
anyhow binding on him and asked the Court to take action under Ss- 151 and 152, Civil P. C.
The learned Subordinate Judge dismissed defendant 4's application on the ground that it was not
maintainable under Sections 151 and 152, Civil P. C. He did not dispose of the application on the
merits. The result was that the final decree was passed on 10th November 1928. Mohammad
Raza has now applied for revision challenging the order of the learned Subordinate Judge dated
10th November 1928.

4. We have examined the record and find that Mohammad Raza defendant 4 was not really a
party to the compromise in question. His name was of course noted in the petition of
compromise, but the fact is that the compromise was not signed either by him or his pleader or
agent on his behalf. Saiyid Zaigham Ali had appeared as pleader for defendants 3 and 4 in that
suit, but it is noticeable that he did not sign the compromise in question on behalf of defendant 4.
We should like to note also that he had no authority to compromise the suit on behalf of
defendant 4 as his vakalatnama did nob authorize him to compromise the suit on behalf of
defendant 4 and he did not actually compromise the suit on behalf of the said defendant.
Defendant 4 was not personally present on the date on which the compromise was filed. We
regret that the learned Subordinate Judge did not take the trouble of seeing whether the
compromise was duly signed by defendant 4 or his duly authorized agent or pleader. He ought to
have seen that the compromise was duly signed by or on behalf of defendant 4. The endorsement
on the compromise shows that Mr. Zaigham Ali, who had appeared as pleader for defendants 3
and 4 had admitted simply the contents of the compromise, but the admission does not and
cannot make the compromise binding on defendant 4. Defendant 4 never authorized Mr.
Zaigham Ali to enter into the compromise in question on his behalf. It is quite clear that the
compromise is not binding on defendant 4 and the decree which was passed on the compromise
is void as to him. Defendant 4 never gave his consent to the compromise in question. The
question is:
5. Can defendant 4 now ask the Court to remove his name from the decree or re open the case so
far as he is concerned by making the application under consideration?
6. There is no doubt that the Court has an inherent power to correct its own proceedings. As
pointed out in the case of Devendra Nath v. Ram Rachpal1 every Court has an inherent power to
correct its own proceedings. It can set aside its own decree based on a compromise found to have
been filed by a person having no authority to make or present the compromise. It is immaterial
whether this power is to be found in Section 151 or Section 153, Civil P. C, or whether it is a
power in review. The decision of the Bombay High Court in the case of Basangowda
Hanmantgowda v. Churchigirigowda Yogandowda2, was followed in that case. We should like to
note that the question of limitation was not considered in those cases. We have sent for the record
of the case reported in Devendra Nath v. Ram Rachpal (supra). The record shows that the decree
in respect of which the application was made under Section 151, Civil Procedure Code was
passed by the District Judge on appeal on 21st January 1925. The application under Section 151,
Civil P. C, was made on 20th March 1925. The application was thus made in that case within the
period of limitation provided for appeal (or review) from the decree passed in that case and the
decree had not become final till then.

7. The respondents learned counsel contends that the present application for revision
is not maintainable as an appeal lies to this Court from the final decree passed by the lower Court
in this case, We are not prepared to accept this contention. The learned counsel has referred to
Section 96, Civil P. C, but the applicant having preferred no appeal from the preliminary decree
was precluded under Section 97, Civil P. C, from disputing its correctness in any appeal which
could be preferred from the final decree. It appears of course that the applicant could appeal from
the preliminary decree as that decree was not passed with his consent, but he failed to do so. The
preliminary decree was passed in this case more than two years ago and no appeal was preferred
from that decree within the period provided by law. Though the decree in question is void as to
the applicant as stated above, but the fact remains that no steps were taken for setting aside that
decree before August 1923. Mohammad Raza made his first application under Sections 151, 152,
Civil P. C, on 4th August 1928. He thus made his application under Sections 151 and 152, Civil
P. C, long after the period of limitation provided for appalling from the preliminary decree had
expired. The Court has of course an inherent power to correct its own proceedings, but the
question is:

        Has the Court such power to correct its decree which is in conformity with the judgment;
        simply on the application of a party though the decree was appealable but no appeal was
        preferred from the decree within the period of limitation?

8. It was held in the case of Tola Ram v. Panna Lal3, that the Court cannot ignore the provisions
of the law of limitation by appealing to Section 151, Civil P. C.

9. The questions involved in this case are questions of some difficulty and also of importance.
We have therefore thought it proper to refer the following questions to a Full Bench of this Court
under Section 14 (1), Oudh Courts Act (Act 4 of 1925):

        (1) Is it open to a party to a suit to appeal from the decree passed in the suit on the basis of
        a compromise purporting to be on his behalf when the person verifying or admitting the
        said compromise had no authority to enter into it on his behalf ?
        (2) Is it open to Bach a party in the suit to invoke the inherent power of the Court to get
        the judgment and the decree amended under Sections 151, 152 and 153, Civil Procedure
        Code, so that his name might be removed from the decree after the period of limitation
        prescribed for appeal or review has expired and the judgment and the decree have thus
        become final?

Opinion Stuart, C.J.

10. The two questions which have been referred to the Full Bench under the provisions of
Section 14 of Local Act 4 of 1925 are these :

        (1) Is it open to a party to a suit to appeal from the decree passed in the suit on the basis of
        a compromise purporting to be on his behalf when the person verifying or admitting the
        said compromise had no authority to eater into it on his behalf ?
        (2) Is it open to such a party in the suit to invoke the inherent power of the Court to get
        the judgment and the decree amended under Sections 151, 152 and 153, Civil Procedure
        Code so that his name might be removed from the decree, after the period of limitation
        prescribed for appeal or review has expired and the judgment and the decree have thus
        become final ?

11. The application under Section 151 covers much ground. Before it can be decided it would
appear that information should be given to the Bench which at present is not before it. The
applicant has not so far filed an affidavit stating when he received information that the
preliminary decree had been passed against him and there is need for explanation as to why his
counsel agreed to an adjournment for a fortnight in order to discuss an amicable settlement, why
he put before the Court the terms of the amicable settlement at which he said both the parties had
arrived, why he committed those terms in writing and why he agreed to them on behalf of his
client when according to the applicant his counsel never informed him of any of these facts. But I
have no difficulty in answering the two questions propounded without going into these matters. It
is not for this Full Bench to decide on the merits. The merits will be discussed before the Bench
which ha3 made the reference. My opinion on the points before us is as follows. It is open to a
party to a suit to appeal from a decree passed in the suit on the basis of the compromise
purporting to be on his behalf on the ground that the per. son verifying or admitting the
compromise had no authority to enter into it on his behalf. In regard to the second question I
consider that it is open to a party in a suit to invoke the inherent power of the Court to get the
judgment and the decree amended under the provisions of Sections 151, 152 and 153 of the Code
quite apart from the limitation, applicable to the institution of an appeal or a review. He has a
right to make the application but it is for the Court to decide whether ho has made out a case
justifying interference. An unjustified abstention may well be held on the merits to afford
sufficient ground for refusing relief. This, however, is a question of merit. He has a right to apply,
but it is for the Court to see whether his application deserves consideration

Wazir Hasan, J.

12. The two questions referred for decision to the Full Bench are as follows :

        (1) Is it open to a party to a suit to appeal from the decree passed in the suit on the basis of
        a compromise purporting to be on his behalf when the person verifying or admitting the
        said compromise had no authority to enter into it en his behalf ?
        (2) Is it open to such a party in the suit to invoke the inherent power of the Court to get
        the judgment and the decree amended under Sections 151, 152 and 153, Civil P. C. so that
        his name might be removed from the decree, after the period of limitation prescribed for
        appeal or review has expired and the judgment and the decree have thus become final?

13. On the first of these questions the argument of the learned counsel for the applicant is that
having regard to the provisions of sub-S. 3, 3. 96, Civil P. C an appeal from the decree passed in
this case being a decree with the consent of the parties was excluded by those provisions. The
argument in answer is that having regard to the facts which exist behind the decree and the
circumstances in which it came to be passed the decree in question in this case must be treated as
a decree not passed with the consent of the parties. Speaking for myself I am inclined to accept
the argument advanced on behalf of the applicant. It is admitted that the decree on the face of it is
a decree passed with the consent of the parties. It is true that if we are to enter into the merits of
the circumstances in which the decree in question came to be passed it might be found that the
decree is a nullity; but I should think that the proper procedure for discovering the nullity or
otherwise will be to initiate proceedings under Section 151 or by way of review of judgment. But
if the decree ex facie is a consent decree it seems to me that an appeal is barred. It appears to me
to be wholly immaterial as to whether the decree can be shown by proof of circumstances aliunde
to be not a consent decree. But when it is shown, it is only then that it would cease to be a decree
without consent. The present proceedings are clearly intended to bring about the last mentioned
result. The proceedings may fail or may succeed. If they succeed the decree will only then cease
to be a consent decree.

14. In the present case, however, it is not necessary for me to commit myself definitely to the
view stated above. I will assume in answering the first question that an appeal could be preferred
and would therefore answer that question in the affirmative. This answer, however, does not lead
me to the conclusion that because a party can get an error in a decree rectified by appealing
therefrom and if he does not appeal, his other remedy, if it is open to him under the provisions of
the Civil Procedure Code, must also be shut against him. This brings me to answering the second
question which again I would answer in the affirmative. The fact that no appeal has been
preferred while it could be preferred and the further fact that an appeal, if now preferred, would
be barred by limitation are wholly immaterial. Considerations such as these may or may not
weigh with the Court when deciding the application on merits. I can well conceive of eases
where a Court would be amply justified in correcting its errors "in spite of the fact that the same
error could have been corrected by the Court of appeal if an appeal had been preferred. In this
connexion a case where a decree passed by a Court turns out to be a nullity may well be stated as
an example. Where a decree is a nullity no proceedings are required to set it aside either by way
of an appeal or otherwise: see Khairajmal v. Daim4, Any person may draw the attention of the
Court to the error which has resulted in making a decree a nullity and the Court would be well
advised in correcting that error even after a lapse of 100 years. I am not at all fantastic when I say
hundred years. I very deliberately use that expression. Time is of no consequence in matters like
these. I had occasion to decide a similar point in the case of Sheodarshan Singh v. Matadin
Singh5, The question of limitation can only arise in this way. Will an order passed under Section
151, Civil P. C. rectifying an error injuriously affect the other party where he has obtained an
advantage in his favour by lapse of time. If this question is answered in the affirmative that may
be a reasonable ground on merits to refuse relief under that section. In the present case though
the applicant does not state specifically in his application to the Court below the ultimate relief
which he claims but obviously he cannot get more than an order setting aside the so-called
compromise decree in so
far as he is concerned and restoring the suit in which that decree came to be. passed
for trial de novo on merits as against him. If he were asking for the dismissal of that suit
altogether and thus compelling the plaintiff to institute a fresh suit for obtaining the same relief
and if the Court were of opinion that a fresh suit would be barred by time or otherwise I am quite
clear in my mind that such a prayer would be refused. But none of these considerations arise at
the present stage of the case. As observed by the Hon'ble Chief Judge these matters and matters
similar to them are the grounds on which the Court would be justified in basing its opinion when
it comes to form it on the merits of the application.

Raza, J.

15. I accept and adopt the judgment of the Hon'ble the Chief Judge and therefore answer both the
questions in the affirmative.

Cases Referred.
1 A. I.R. 1926 Oudh 315
2[1910] 34 Bom. 408- 5 I. C. 968=12 Bom. L.R. 223
3 A.I.R. 1924 All. 668=46 All. 631

4[1905] 32 Cal. 296-32 I. A. 23= 3 Sar. 734 (P.C)
5 A.I.R. 1924 Oudh 408