Questioning of findings of fact in second appeal.

Sir John Beaumont.-This is an appeal by special leave from a judgment and decree of the High Court of Judicature at Patna, dated 15th May, 1945, reversing in second appeal the judgment and decree in first appeal of the Additional Subordinate Judge of Darbhanga, dated 24th August, 1943, and dismissing the appellant’s suit.

The contention of the appellant is that the learned Judge who heard the second appeal in the High Court reversed decisions of fact arrived at by the lower appellate Court, and that in so doing he acted contrary to the provisions of section 100, Civil Procedure Code. It is settled law that in view of that section a High Court has no power in second appeal to question findings of fact reached by the first appellate Court which there was evidence to support.

The property in suit originally belonged to one Bihari Paswan, who, on 24th February, 1908, by a sale deed, Exhibit A, sold the property to Mukh Lal. The deed provided that part of the purchase money should be applied in remitting a mortgage held by Mangni Ram. By deed dated 13th July, 1921, Exhibit A(2), Mukh Lal purported to sell the property to the wife and two minor sons of Mangni Ram. In the year 1928 one Santi Nayak, father of the appellant, obtained a money decree against Mangni Ram and Mukh Lal on a promissory note signed by them. In execution of this decree, the property in suit was sold by the Court and was purchased by Santi Nayak on 16th November, 1928. The purchaser took no steps to obtain possession of the property which he had purchased.

In the year 1929 Mulch Lal applied under rule 13, Order 9, Civil Procedure Code, to get the decree obtained against him by Santi Nayak, which had been obtained ex parte, set aside. This application was dismissed by the Judge in execution, and Mukh Lal lodged an appeal against the order for dismissal.

On 29th March, 1930, Mukh Lal and Santi Nayak presented to the Appellate Judge an application for recording a compromise of the appeal. It was signed by Mukh Lal in person and by Santi Nayak by his attorney, and was in the following terms:

‘“The appeal has been compromised between the. appellant and the respondents. According to the terms of the said compromise, it has been settled that this appeal may be allowed and the decree, dated 7th July, 1928, may be set aside and the title suit may be restored to its original number and Mukhlal Prasad appellant may be removed from the category of defendants because the petitioner respondents have now come to know on enquiry and investigation that in fact the appellant has no connection with Mangar Ram and recently Mangni Ram has paid in full the entire decretal amount with cost to the respondent consequently the auction sale will be set aside. Hence this petition is submitted and it is prayed that the auction sale and the decree may be set aside and the appeal may be decreed. The parties will bear their own costs of the appeal. In attestation hereof the signatures of the respondents and the lawyers of the appellants and the respondents are affixed herein below The petition of Mukhlal Prasad appellant and Santi Nayak respondent, dated 29th March, 1930.”

The learned Judge who heard the petition was not satisfied with the bona fides of the compromise and made an order in the following terms:

“The pleader B.B.K. Biswas was permitted to sign the vakalatnama to-day and he signed it. I am not inclined to decree this appeal in terms of the compromise. I cannot set aside an ex parte decree in an old suit simply because the parties want me to do so. I must be satisfied as to the correctness and bona fides of the allegations made in the petition for setting aside the ex parte decree. If the parties want to compromise they must settle the whole dispute including the original suit. Put up on 15th May, 1930, for hearing of the appeal.”

Thereafter the parties did not appear on the days fixed for hearing the appeal which was consequently dismissed for non-prosecution.

On 16th October, 1937