A compromise decree obtained by fraud can be set aside by the court in exercise of its inherent powers under Section 151 of the Code of Civil Procedure.

JUDGMENT :

1. This is a revision challenging the order of the Additional District Judge Cuddapah, in I. A No. 160 of 1961 in O.S. No. 3 of 1955 that the said petition (I.A. No. 160 of 1961) is maintainable and could be inquired into.

2. The relevant facts are these: O.S. 3 of 1955 was filed for partition of the properties of one late Bahadur Saheb. The plaintiff in the suit was his widow. Defendants 1 and 2 in the suit were the minor sons of the said Bahadur Saheb represented by their maternal uncle as their guardian. 3rd. defendant was the said Bahadur Saheb's brother, 4th. defendant was a daughter of Bahadur Saheb by another wife. The guardian had obtained leave of Court to enter into the compromise. The suit was compromised on 2-3-1957. A preliminary decree was passed in terms of the compromise. It is represented that a final decree is yet to he passed in respect of certain lands. It is at this stage that the 1st. defendant filed an application under Section 151 C.P.C.I.A. No. 160 of 1961, the maintainability of which is now in question, alleging that the 3rd defendant had played fraud on the court by laying a claim to a half share of the properties and had obtained such share in the compromise, while in fact under the agreement entered into by him on 16-1-1953 with the late Bahadur Saheb, his brother, he had agreed to take certain properties and cash in lieu of his share in all the properties. It was alleged that the said agreement was exclusively within the knowledge of the 3rd. defendant but that was suppressed from the court and that the compromise entered into was not beneficial.

3. The petition was opposed inter alia on the question of maintainability, further to repudiation of the allegations. On the facts it was pleaded that the agreement between himself and his late brother Bahadur Saheb was true but was not acted upon. With regard to the maintainability of the petition, it was pleaded that the remedy was to file a regular suit and not to invoke the inherent powers of the court under section 151 C.P.C.

4. The learned judge held that on the allegations the petition was maintainable under section 151 C.P.C. The legality of the said order is questioned before me.

5. Sri Kuppuswamy's contentions as mainly two fold: firstly that it is not true that any fraud was committed on the court, and secondly assuming that the allegations are taken for granted, these are matters which are to be gone into in a suit to set aside the compromise decree on the ground of fraud, etc., His further submission is that the question of fraud, when investigated in a suit, could be carried in appeal and that relief is shut out if the enquiry is gone into in a petition invoking the inherent powers of the court.

6. I am unable to agree with the contention that a material fact was not suppressed from the court. Where a compromise is entered into on behalf of the minors, the court has a special duty under O. 32. R. 7 C.P.C. to grant leave. The rule forbids the next friend to enter into an agreement or compromise on behalf of the minor without the express leave of the court. By necessary implication the court has to consider, in the exercise of its judicial discretion, the propriety of the same in the interests of the minor. The agreement was within the exclusive knowledge of the 3rd. defendant. The suppression thereof would mean that a vital matter was not placed before the court. It follows that leave was granted under a mistake. A compromise is only a contract and if entered into under a misapprehension as to material facts or brought about by the mistake of the parties and of the court with regard to the subject matter of the suit, it cannot be said that it is valid and binding upon the minor just because an outward form of sanction of court has been obtained. A suppression of a material fact would be tantamount to misleading the court.

7. There is consistent authority for the proposition that a court could, in the exercise of its inherent power