JUDGMENT P.C. Saxena, Member. - The Additional Commissioner, Varanasi Division, Varanasi has made this reference dated September 5, 1974 in a case under Section 229-B of the U.P.Z.A. and L.R. Act. 2. Plaintiff Habiraj and others had filed a suit under Section 229-B of the U.P.Z.A. and L.R. Act against the U.P. State and the Gaon Sabha alleging that they had been grove holders of the land in suit on the date of vesting and consequently became Bhumidhars thereof. At the very least they claimed to be Sirdars. 3. On February 18, 1969 a written statement was filed purporting to be signed by the Pradhan of the Gaon Sabha, Ram Nihore, which admitted the claims of the plaintiff in their entirely. A vakalatnama signed by Ram Nihore in favour of his counsel was also filed. On May 21, 1969 the learned trial court delivered a brief judgment which contained the observation that summons had been issued to defendant but they did not turn up and that the case had proceeded ex parte against both of them. One of the plaintiff had been examined in oral evidence and the case of the plaintiff was found to be proved. The suit was decreed ex parte. 4. On March 30, 1970 an application was filed by Ram Nihore before the trial court under order IX, Rule 13 and Section 151 of the C.P.C. allegation that the land in suit was the property of the Gaon Sabha and that the plaintiff in the original suit had entered into a conspiracy with the District Government Counsel to file the above suit. He alleged that he was Up Pradhan of the Gaon Sabha and acting in place of the Pradhan who had died and he had himself received the summons in the suit. There upon he had gone to the counsel for the Gaon Sabha Sri Markande Singh and requested him to flight the case. He alleged that Sri Markande Singh and the counsel for the plaintiff live in the same house. The Moharrir of the Government Counsel made him sign on a blank sheet of paper and the Vakalatnama. Since the Moharrir of the Government Counsel was a close relation of Habiraj plaintiff it was easy for the conspiracy to be put into effect. He alleged that Sri Markande Singh and the counsel for the plaintiff live in the same house. The Moharrir of the Government Counsel made him sign on a blank sheet of paper and the Vakalatnama. Since the Moharrir of the Government Counsel was a close relation of Habiraj plaintiff it was easy for the conspiracy to be put into effect. Thus, the decree of May 21, 1969 was obtained by fraud in conspiracy with the Government Counsel and was sought to be set aside. 5. The U.P. State was one of the opposite parties in the above application which was accompanied by a Vakalatnama in favour of another lawyer. It is however, a peculiar feature of the present proceedings that at no stage did it deem fit to the file any written statement in the matter inspite of the fact that allegation of an extremely serious nature had been made against a counsel appointed by itself to represent the State and the Gaon Sabha. In the original suit also no written statement was filed by the State. 6. On March 28, 1947 the learned trial court set aside the decree dated May 21, 1969 and restored the original suit. The court noted the fact that the written statement which Ram Nihore had alleged to be fraudulent had been written on February 18, 1969 while the summons served on him as representing the Gaon Sabha had actually been served later i.e. on February 24, 1969. This was held to show clearly that there had been some mischief. On legal grounds also, the view was taken that since the judgment dated May 21, 1969 did not mention the written statement at all this fact showed that it had not come to the notice of the trial court and so the order was ex parte and it was held proper to set it aside. 7. In revision the learned Additional Commissioner has recommendation that the order of the trial court be set aside. Apart from the other discussion of the issues involved another strange feature of the proceedings in the trial court has been mentioned by him and this is to the effect that the counsel for the opposite parties had admitted that the written statement dated February 18, 1969 had been placed on the file subsequent to the passing of the ex parte decree. A further view has been expressed that the application given by Ram Nihore for restoration was in his personal capacity and not on behalf of the Goan Sabha. It was also beyond limitation since he had been served with the summons and had knowledge of the proceedings that were pending. The learned Additional Commissioner has also expressed the view that even if the allegations are true they at the most constitute not a fraud on the court but against Ram Nihore by Sri Markande Singh, advocate, and his clerk, Badlu Ram. It has also been stated that even if the application of Ram Nihore is admitted to be on behalf of the Gaon Sabha it did not comply with the provisions of the paragraph 128 of the Gaon Samaj Manual. 8. In argument before me Ram Nihore has been represented by counsel engaged by himself. The learned counsel for the State and the Gaon Sabha was also present in court, but the fact needs to be noticed that he has not thought fit file any statement in favour of or against the recommendation of the Additional Commissioner. Arguments against the recommendation have been submitted by the counsel engaged by Ram Nihore. 9. Learned counsel has cited a ruling reported in 1953 R.D. 175 where it has been held that where a court is satisfied that it has been misled into passing certain orders in consequence of fraud practised upon it, it must be in a position to vindicate its authority by setting aside the order which it would otherwise have certainly refused to make. In these circumstances it is competent to set aside a consent decree by exercising its power under Section 151, C.P.C. 9. (a) A careful study of the ruling however shows that the Board made a clear distinction between a fraud against a party and a fraud upon a court. The case discussed was one in which a person had been brought into the court by the plaintiff and this person impersonated the defendant and conceded the claim. It was in these circumstances that was held that it was the court itself the consent was not consent at all because it was not really given by the defendant. 10. It cannot be held in the instant case that the fraud practised on Ram Nihore as alleged by him was a fraud on the court. It was in these circumstances that was held that it was the court itself the consent was not consent at all because it was not really given by the defendant. 10. It cannot be held in the instant case that the fraud practised on Ram Nihore as alleged by him was a fraud on the court. He has himself admitted that he signed the paper on which the written statement was recorded later. Whether or not the court considered the statement before delivering judgment is immaterial as in any case an ex parte decree was given the court being under the impression that the defendants had notice of the proceedings or were not challenged the claim of the plaintiff. The ruling cited by learned counsel does not, therefore, held him. 11. Three other ruling have been shown. 12. The first is of the Allahabad High Court reported in 1957 A.I.R. 820. Here an application had been filed under Section 151, C.P.C. by the defendant who had alleged that the son of the plaintiff had persuaded him to sign the compromise by practising fraud and misrepresentation. He further alleged that he had signed the paper without understanding its content. The compromise had thus been obtained by practising fraud on him as well as on the court. In this case, their Lordship held the the defendants had no right to pray for the quashing of he compromise and the setting aside of the decree in an application under Section 151, C.P.C. The distinction between a fraud practiced upon a party and one practiced upon a court was discussed and it was held that the defendant as well as his counsel had signed the compromise along with the plaintiffs counsel. The remedy of the defendant was to institute a suit to set aside the decree on the ground of fraud. 13. The second ruling is of the Hon'ble High Court reported in unreported Revenue Cases, 1974, Volume I, page 365. In this case the Gaon SAbha had alleged that the written statement purported to have been filed on its behalf was one which had been written down on a paper on which the plaintiff had fraudulently obtained the signatures of the Sabhapati. It was held that the Gaon Sabha, if it so desired would be at liberty of file a suit for setting aside the ex parte decree on the ground of fraud. It was held that the Gaon Sabha, if it so desired would be at liberty of file a suit for setting aside the ex parte decree on the ground of fraud. 14. The third ruling is that of a Division Bench of the Board of Revenue reported in 1957 R.D. 57. Learned Members held that the question of fraud raised three questions. Firstly, it is necessary to ask whether the allegation in the application prima facie constitute fraud or not. Secondly, it should be seen whether the fraud complained of is fraud upon the party or upon the court. The third point was that in either case it has to be seen whether it was or was not obligatory upon the trial court to enquire into the allegation of fraud and arrive at a definite finding before setting aside the compromise decree. If the act was an act of fraud upon a party the court itself could not set aside the decree on the ground of fraud, but the remedy lay in a separate suit. In the case discussed it was held that no fraud had been committed upon the court since the allegation was that the compromise was the result of an act of fraud upon her by the plaintiff. 15. Applying the criteria laid down in the above rulings, it is clear that the allegations of fraud in this case are one which concern a party. There has been no fraud on the court itself. On a technical view of the matter. Ram Nihore was aware of the proceedings before the trial court and his application for restoration was, therefore, beyond time as held by the Additional Commissioner. If any fraud had been practised upon him his remedy lay in a regular suit for setting aside the ex parte decree. The order of the learned trial court, is therefore set aside. 16. It now remains to take notice of an important point in the present suit which raises issues of a far-reaching character. Setting aside of the ex parte order as done by the learned trial court implies an acceptance by the court of the very serious charges levelly against the learned Government Counsel for the Gaon Sabha. These charges involves not only gross processional misconduct but also allegations of a criminal nature. Setting aside of the ex parte order as done by the learned trial court implies an acceptance by the court of the very serious charges levelly against the learned Government Counsel for the Gaon Sabha. These charges involves not only gross processional misconduct but also allegations of a criminal nature. It would not be proper for any court of law even if it had discretion in the matter to hold such charges to be correct with out strong evidence in support thereof. There is no evidence on the record that the Gaon Sabha at any stage complained to the Bar Council of Uttar Pradesh or the Government of Uttar Pradesh which is the authority that appoints it counsel. The bona fides of the person making such allegation must be doubted in the matter in the absence of any such steps taken by him and he has to justify this lacuna by strong reasons. 17. It has also to be observed that the conduct of the litigation on behalf of the Gaon Sabha as well as the State Leaves much to be desired. Though it was made a party in the restoration application no statement whatsoever, has been filed on behalf of the state in such a serious matter involving allegation against a counsel nominated by itself either denying those allegation or supporting them. This unexplained silence which may be dignified but not justifiable needs to be brought to the notice of the Government of U.P. for such enquiry into the matter as they may deem fit. 18. It is, therefore ordered that a copy of this judgment be sent to be the Chief Secretary, Government of U.P, Lucknow for necessary action. 19. The revision application is allowed and the order of the learned trial court set aside. The Gaon Sabha shall be at liberty to file a suit before the appropriate civil court for setting aside of the decree alleged to have been obtained by fraud.