A compromise decree can be set aside by the court in exercise of its inherent power if fraud is practised upon the court.

S.B. Sinha, J. - This application is directed against an order dated 6.4.1990 passed by Shri Bishambhar Upadhaya, Sub-ordinate Judge, Ranchi in Misc. Case No. 33/87 whereby and whereunder the said learned court rejected the application filed by the plaintiffs Opp-parties in terms whether it was declared that the consent decree dated 24.6.1987 was an unlawful and illegal one.

2. The fact of the matter lies in a very narrow compass.

3. The Opp-party No. 1 filed a partition suit being Partition Suit No. 327 in the Sub-ordinate 1st Court Ranchi. The Opp-party No.1 being the mother of the plaintiffs-Opp-parties No.2 to 6 acted as their next friend and guardian.

4. The defendants No. 1 to 3 petitioners in the aforementioned suit filed their written statement denying and disputing the claim of the plaintiff. Allegedly the parties entered into a compromise and adjusted all their disputes on 24.6.1987. The said compromise was allegedly signed by all the defendants as also by the plaintiff No. 1 on behalf of the minor plaintiff purported to be upon obtaining necessary permission of the Court. By an order dated 1.7.1987 the said petition of compromise filed by the parties was accepted and a final decree was prepared on the basis thereof. The said final decree was signed on 13.7.1987.

5. On 10.7.1987 an application was filed under Section 151 of the C.P.C. in the aforementioned suit praying therein that the order accepting the said compromise dated 24.6.1987 be set aside.

6. The said application dated 10.7.1987 which is contained in Annexure-3 to the civil revision application was inter alia based on two grounds viz :

(i) A fraud was practised upon plaintiff No.1 to sign the said compromise petition dated 24.6.1987 and her signature was• obtained on a false representation.

(ii) Plaintiff No.1 being the mother of the other minor plaintiff had no authority under the law to compromise the suit on their behalf.

7. A rejoinder to the said application was filed by the petitioners wherein the assertions made by the plaintiffs Opp-parties were denied and disputed. The said petition is contained in Annexure-4 to the civil revision application.

8. The plaintiffs-Opp-parties filed a rejoinder to the said application which is contained in Annexure-5 to the civil revision application.

9. By reason of the impugned order, the learned court below held that he had jurisdiction to make an enquiry with regard to the allegations made in the application filed by the plaintiffs-opp. parties under Section 151 of the CPC.

10. The learned court below in support of his aforementioned findings relied upon a decision of this court in Maimun Nisa vs. -Mohammad Khodabin reported in AIR 1985 Patna 55.

11. Upon consideration of the evidences, on record the learned court below further held that as fraud was practised upon the plaintiff No. 1 in obtaining her signature on the compromise petition and further in view of the fact that no leave of the court was obtained by the next friend or guardian of the minor for the purpose of entering into the aforementioned compromise as is required under Order 32 Rule 7 (1) (A) of the CPC, the said compromise being not lawful, a suit is barred in terms of Order 23 Rule 3A of the CPC and in that view of the matter the application under Section 151 was maintainable.

12. It was further held that in view of Article 360 of the Mulla's Mohammedan Law, the mother being not a guardian, she was not entitled to enter into a compromise on behalf of her children. Reliance in this connection has been placed in Md. Zaffar vs. Amiruddin reported in 1963 Patna 108.

13. Mr. Prasad the learned counsel appearing on behalf of the petitioner has raised several contentions in support of the application.

The learned counsel firstly submitted that in view of sub-section 3 of section 96 of the Code of Civil Procedure as also Order 43 Rule 1 (A) (2) thereof it must be held that an appeal was maintainable, and thus an application under Section 151 of the - CPC was n