A fraud played upon a party may in the facts and circumstances of a particular case amount to a fraud practised upon the court.

1. This application is directed against an order dt. 5-12-1980 passed in Misc. Case No. 16/80 by 2nd Addl. Subordinate Judge Sitamarhi. By this Order the learned Subordinate Judge dismissed the miscellaneous case holding that the same was not maintainable.

2. In partition suit No. 168/73 a petition of compromise was filed and the suit was ordered to be decreed in terms of the same on 10-9-1980, on 13-9-1980 these petitioners who are Pardanashin ladies filed an application stating interalia that the compromise had been obtained by practicing fraud upon them. They alleged that although there was a talk of compromise between them and the opposite party, their left thumb impression was obtained on a piece of Sada paper and Vakalatnama and a petition of compromise was filed in the suit by practising fraud upon them. They inter alia stated that their share in the property was more than 1.50 acres, but, they have been given only 25 acres by the alleged compromise, for which they had never agreed or consented.

3. On the basis of the said application a miscellaneous case No. 16/1980 was registered. The opposite party filed a rejoinder stating inter alia that the miscellaneous case was not maintainable either under O.23 R.3 of the Civil P.C. or under S.151 of the Code. The opposite party stated that the petitioners had consented to the compromise, they had put their thumb impression on the petition of compromise and their lawyers had also signed the same. A point was raised that it might be a fraud upon the party but was not a fraud upon the Court, and, therefore, the only remedy open to the petitioners was to file a suit for setting aside the compromise decree. After hearing the parties the learned Subordinate Judge has also found that on the basis of the allegations it cannot be said that it is a fraud upon the Court and, therefore, even under its inherent jurisdiction the Court cannot entertain such application. The miscellaneous application was therefore dismissed. Hence this civil revision application by the two ladies.

4. Mr. Mishra appearing on behalf of the petitioners has submitted that in the facts and circumstances of the case it should be held to be a fraud practised upon the Court and not merely a fraud upon the party.

5. In the case of Basudeo Misir V/s. Mt. Paudharo Kuar AIR 1934 Pat 41 it was held that where the Court accepts a compromise which is filed on behalf of Pardanashin lady but it is subsequently found that no proposal of the compromise had been made to her and that it had been brought about by practising fraud on her, the Court has power to set aside the order accepting the compromise. What had happened in that case was that a petition of compromise had been filed which had been accepted by the Court and on the basis of which a decree had been prepared. The lady who was said to be a party to the compromise appeared and filed an application denying that she had ever consented to the compromise. This was accepted by the learned Munsif and the order accepting the compromise was recalled. In revision against that order it was held that the aggrieved party had not consented to the compromise and the Court had inherent power to set aside the order. In the case of Sheodhar Prasad Singh V/s. Ramdeo Prasad Singh AIR 1934 Pat 229 it was held that where consent had been obtained by practising fraud upon the parties the remedy lies by way of filing a suit and not by filing an application for recall. Mr. Agrawal learned counsel for the opposite party relied upon this observation made in the above case. In that case a distinction was sought to be made between a fraud practised upon the Court and a fraud practised upon the party. In the case of fraud practised upon the Court it was held that it was always within the inherent power of the Court to correct its own proceedings but where a consent had been obtained by practising fraud upon the parties, then in that case, it was held that, the remedy was by way of a suit.