Parimal Kumar Das v. Renu Mitra — 1988 DIGILAW 292 (PAT)

ORDER On a direction by a Bench of this Court dated 12.8.1987, the Civil Review petition along with the petition for condonation of the delay, have been placed for admission. 2. The petitioner seeks review bf an order dated 15th May, 1968, passed in Misc. Appeal No. 272 of 1964, an order compromising the appeal and partition suit by the father of the petitioner, who was defendant No.6. The review petition has been filed on 12.7.1985. The petitioner is a "Dayabhaga son and was not a party to the suit and the appeal which were compromised. The petitioner alleges that fraud has been prepetrated in compromising the suit and the appeal, inasmuch as the western part of the residential house (Schedule 'A' of the plaint), even though was allotted to the petitioner's father (defendant No., 6) but the final decree shows that the western part of the residential house has been allotted to defendant Nos. 1 to 5 and the eastern part to defendant No. 6, the deceased father of the petitioner. Fraud has been detected by the petitioner on 27th April, 1985. In the condonation petition, the delay of about seventeen years in filing the review petition is sought to be explained by detection of fraud by the petitioner on 27.4.1985, as also the delay between ,the date of knowledge and the date of filing the review petition on 12th of July, 1985, is sought to be explained by reference to order dated 6th June, 1985, passed in Misc. Appeal No. 138 of 1985. It has been urged that under the orders of the Court dated 6.6.1985, the instant review petition has been filed. The review petition thus having been filed within six days of the said order, it is well within time. 3. Counter-affidavits have been filed on behalf of the opposite party No.2, both as to the maintainability of the review petition at the instance of a person who was neither a party to the suit and the appeal, as also absence of sufficient cause for the delay In filing the review petition. It has been stated that Misc. Appeal No. 272 of 1964 arose out of a suit for partition, where the petitioner's father was defendant No. 6. It has been stated that Misc. Appeal No. 272 of 1964 arose out of a suit for partition, where the petitioner's father was defendant No. 6. Petitioner's deceased father preferred Misc., Appeal No. 272 of 1964 against an order dated 6.8.1964 disposing of the suit on the basis of a compromise arrived at between the parties in the suit in the Court below. Misc. Appeal No. 272 of 1964 was compromised by filing a compromise petition signed by all the lawyers disposing of the appeal and the suit on 16.5.1968 by a Division. Bench of this Court with a direction: "Let the suit and the appeal be disposed of in terms of the compromise petition which will form part of the decree." Defendant No.6 did not raise any objection during his lifetime, who died on 10-3-1969. The petitioner is a Dayabhaga son, who seeks to re-open the compromise arrived at by his deceased father, after seventeen years, on the alleged ground of fraud. It has also been stated in paragraph 15 of the counter-affidavit dated 29-7-1987 and paragraphs 27 and 28. of the counter-affidavit dated 14-1-1988 that acting upon and in accordance with the compromise petition and order dated 16-5-1968, the plaintiff and others have sold the portion allotted to them other legal heirs and, representatives of defendent No.6, namely brothers of the petitioners have acted upon the compromise order and have sold away lands out of the portion allotted to defendent No.6 and the petitioner has got several litigations against the purchasers of the said properties from his brothers since 1978-79. but did not prefer a review petition at that time. It has further been averred, that at the time of the preparation of the final decree on 6-7-1979, it was detected that the compromise petition dated 16-5-1968 was not made a part of the decree. Therefore, a petition was tiled by the plaintiff and others on 24-5-1979 to correct the preparation of the filial decree by bringing it in conformity with the order of the High Court passed on 16-5-1968. The petitioner objected by filing an affidavit to the incorporation of the compromise petition dated 16-5-1968 as being a fraudulent document, but the Same was rejected by the trial Court. The petitioner objected by filing an affidavit to the incorporation of the compromise petition dated 16-5-1968 as being a fraudulent document, but the Same was rejected by the trial Court. As against that, the petitioner preferred Civil Revision No. 2260 of 1979 which was disposed of by B.P. Jha, J. on 28-11-1984, directing the Court below to prepare the final decree within a month in consonance with the order dated 16-5-1968 passed by this Court, which is sought to be reviewed by the petitioner. The Court below as per direction aforesaid ordered for preparation of the final decree accordingly. But again the petitioner moved this Court against the said order in Misc. Appeal No. 138 of 1985 and prayed for stay of the preparation of the final decree. P.S. Mishra, J. by his order dated 6.6.1985, rejected the prayer for stay by observing that no adjudication in regard to the validity or otherwise of the compromise decree is possible. He further observed : "Realising his difficulty in this regard Mr. Ghose has indicated that the learned Additional Subordinate Judge II, Patna, has recorded certain findings on merits of the objection which may cause prejudice to his client's interest in the event of a proper application for review of the order passed in the abovementioned Mise, Appeal or any other legal proceeding taken by his client" The Court ordered that any observation made by the trial Court shall not prejudice in the event of the appellant moving for review of the order or in other appropriate legal proceedings. 4. It 4as been submitted that the petitioner came to know about the alleged fraud sometime in August 1979, but he did not challenge the compromise or the order dated 16-5-1968 within, thirty days of his knowledge by filing a review petition. Further, the filing of the review petition on the direction of P.S. Mishra, J. in Misc. Appeal No. 138 of 1985 is incorrect. It, is contended that the instant review petition is only to harass the parties to the suit and their heirs and is highly barred by time and, therefore, be rejected. 5. Having heard learned counsel for the parties, we find considerable difficulty in holding sufficient cause for condonation of this long., delay. The limitation provided for filing a review petition under Article 124 of the Limitation Act is thirty days of the order sought to, be reviewed. 5. Having heard learned counsel for the parties, we find considerable difficulty in holding sufficient cause for condonation of this long., delay. The limitation provided for filing a review petition under Article 124 of the Limitation Act is thirty days of the order sought to, be reviewed. In the instant case, the delay is of more than seventeen years. The submission of Mr. Ghose that the fraud was detected by, his client on 27th April 1985 and, therefore, the limitation should run from the said date does not appear to be correct, inasmuch as, from paragraphs 11 and 12 of the review petition read with paragraph of the condonation petition. it is manifest that the petitioner detected the alleged fraud in the year 1979 itself, when there was a prayer for incorporation of the compromise petition of 16th May 1968 as a part of the final decree, which was sternly objected to by the petitioner. The certified copy of the compromise petition dated 16th of May 1968 was produced before the Court which, itself showed that the eastern part of the house was allotted to the pedtioner1s father, and not the western portion. The petitioner being aggrieved by the action of the Court below to in corporate the said compromise petition. as a part of the final decree moved this Court in Civil, Revision No.2260 of 1979, and this Court on 28th of November 1984, directed to remit the original compromise petition along- with Annexures to prepare the final decree within a month from the date of receipt of the corn promise petition from this Court. It is said in paragraph 6 of the condonation petition that the petitioner was shocked to go through the original compromise petition on 27th of April 1985 and found that the map and the Annexures were changed and the compromise was not agreed by the petitioners father. It is thus contended by the petitioner that the fraud was detected on 27th April; 1985. The contention of the petitioner that the fraud was detected on 27th of April, 1985, does dot appeal to us, since the certified copy of the compromise petition was made available to the petitioner in the year 1979 itself in the court below which was objected to by the petitioner and the objection being overruled he moved this court in Civil Revision No. 2260 of l979, itself. There was nothing to prevent the petitioner to peruse the original compromise petition available in the High Court in the year 1979 before tiling his objection in the court below. Therefore; in our view, the knowledge of the alleged fraud would be attributable to the petitioner in the year 1979 itself. Further, in paragraph 6 of the condonation petition. the assertion that as per direction of P. S. Mishra, J. on 6th of June 1985, in Misc. Appeal No. 138 of 1985, the instant review petition has been filed is not only incorrect but false. On the contrary it was the submission of the learned counsel appearing for the petitioner that he may seek his remedy other by filing a review petition or by any other appropriate legal proceedings. We find complete absence of bona fide and good faith and lack of due diligence in filing this review petition after seventeen years of the making of the order. We, therefore, hold- that this review petition is barred by time. There is no sufficient cause for condonation of the delay in filling the review petition. 6. We called for the original compromise petition and perused the same. It bears the signatures of all the lawyers appearing for the parties including that of the petitioner's deceased father (defendant No.6). The part of the residential house allotted to defendant No.6 is mentioned in the said compromise petition. There does not appear to be any overwriting with respect to it. The petitioner's father, who died no 10.3.1969, never raised any objection during his lifetime with respect to the order dated 16.5.1968, compromising the appeal and the suit for partition. The petitioner is a Dayabhaga son and was not a party either in the suit or the appeal and had no locus stand in the suit for partition during the lifetime of his father. We further find that the parties to tile suit have acted in dealing with their properties allotted to them in the said compromise petition dated 16.5.1968. Even the petitioner's own brothers have sold away properties allotted to their father (defendant No. 6) as per the compromise order dated 16th May 1968. Those brothers understood the compromise petition and acted accordingly. We further find that the parties to tile suit have acted in dealing with their properties allotted to them in the said compromise petition dated 16.5.1968. Even the petitioner's own brothers have sold away properties allotted to their father (defendant No. 6) as per the compromise order dated 16th May 1968. Those brothers understood the compromise petition and acted accordingly. We do not want to express any opinion whether a review petition is at all maintainable at the instance of a person who is not a party to the decree or order, even though the word "party" is referred to under Order 47, Rule 1(2) of the Code of Civil Procedure. Both the learned counsel' for the parties rely on several decisions for and against that a review petition is maintainable for getting, a consent decree vacated on the ground that the same was obtained by fraud, coercion, misrepresentation arid undue influence. As Rankin Chief Justice observed "If a party desires to have a consent decree amended or vacated upon the ground that it was fraudulently procured, his proper course, and indeed the only course, is to proceed by a separate suit for the purpose" (see Galstaun vs. Pramatha Nath, A. I. R. 1929 Calcutta 470). The same is the view expressed by a Division Bench of this Court in the case of Girdharan Pd. Missir vs. Bholi Ram (A. I. R. 1941 Patna 574). It is true that in appropriate cases, the Court may also entertain a petition for review and the Court retains inherent power to investigate the question if the aggrieved party is found not to have in fact consented to compromise (see Chautur Pd. Soh vs. Mt. Bishnni Kuer, (A.I.R. 1943 Patna page 13), or when fraud is practised on the Court in obtaining an order recording the compromise, as held in the case of Bindeshwari Pd. Chaudhary vs. Devendar Pd. Singh (A.I.R. 1958 Patna 618). In view of the facts and circumstances of the case, we are of the opinion that the fraud alleged to have been practised upon the father of the petitioner, who was a party to the suit and who never alleged fraud, cannot be investigated by this Court under Order 47, Rule 1 of the Code of Civil Procedure by a person who was not a party to the said proceeding. 7. 7. In fine, we hold that the civil review petition is barred by limitation and also looks devoid of any merit. It is, accordingly, dismissed.