ORDER
N.C. Sharma, J.
1. This is a revision petition by Smt. Mohan Bai against the order of the District Judge, Udaipur dt. Mar. 10, 1986, dismissing the application filed by the petitioner Under Section 151 of the Civil P.C. on 29th June, 1982 in his Court for setting aside the final decree, which had been passed by the District Judge, Udaipur in the suit for redemption which had been filed by Jai Kishan since dead and represented by the non-petitioners.
2. Facts leading to the filing of this revision petition are that Jaikishan had instituted a civil suit on Nov. 21, 1975 against the petitioner for redemption of mortgage of certain house property which had been usufructuarily mortgaged by him on May 16, 1953 after borrowing a sum of Rs. 2999/- from the petitioner. In the redemption suit, the plaintiff Jai Kishan had stated that he had allowed Smt. Mohan Bai, petitioner to expend amount to the extent of Rs. 2100/- in the said house. It was stated that the petitioner did not make additions in the number of rooms in the property mortgaged, but she dismantled a latrine and started using “owari” in the house as latrine. Thereupon, Jaikishan asked the petitioner and her husband to redeem the mortgaged property from mortgage after taking the mortgage amount and further amount, if any, expended by her. Since the petitioner did not re-deliver the property after redeeming the mortgage, Jaikishan filed the suit for redemption. In that suit, petitioner admitted the factum of mortgage. However, she alleged that she had incurred an amount of about Rs. 7615,85 in making additions in mortgaged property and claimed that amount in addition to the mortgage amount before redemption. A preliminary decree was passed by the trial Court on May 16, 1953 for redemption of mortgaged property on deposit of payment by the plaintiff of the amount of Rs. 2999/- as mortgage money and Rs. 3997,45/- as the amount incurred by the mortgagee incertain constructions or repairs in the mortgaged property. The plaintiff deposited this amount in the trial court. Aggrieved by the preliminary decree, Smt. Mohan Bai defendant filed First Appeal No. 109 of 1981 in the Court of the District Judge. Udaipur. During the course of that appeal, a compromise was filed which was signed by the plaintiff Jai Kishan and his counsel and on behalf of Smt. Mohan Bai, defendant, the compromise was signed by her advocate, Mr. Bansilal. The compromise was verified by the District Judge, Udaipur on Mar. 12, 1982 and the suit of Jai Kishan was decreed in accordance with the compromise.
3. As against the compromise decree dt. Mar. 12, 1982 passed by the District Judge, Udaipur in Civil Appeal No. 109/81, Mohan Bai filed Civil Second Appeal No. 101/83(82?) before this court. In that Second Appeal, the counsel for Mohan Bai, defendant-petitioner challenged the compromise decree on the ground that the compromise on the basis of which the decree was passed, was not signed by the defendant Mohan Bai and was signed only by her advocate Mr. Bansilal. It was urged in the Second Appeal that according to the provisions of Order 23, Rule 3, C.P.C. as amended by the Amending Act No. 104 of 1976, before a compromise can be given effect to by the Court under Order 23, Rule 3, C.P.C., it should be signed by the party himself and a compromise cannot be acted upon by the Court if it is signed merely by the Advocate of the party. The second appeal was dismissed by the Hon’ble Justice Shri D. P. Gupta on Jan. 2, 1983. The judgment of His Lordship is reported in 1983 Rajasthan LR 365 : (AIR 1983 Raj 240). It would appear from para 5 of the reported judgment that his Lordship did not accept the contention of defendant Mohan Bai that the amended provision of Order 23, Rule 3 C.P.C. indicated that the compromise petition signed only by the advocates of the parties would not be given effect to by the Court and after referring to the decision of the Privy Council reported in AIR 1930 PC 158 and to the decision of the Nagpur High Court in Jiwi Bai v. Ramkuwar, AIR 1947 Nagpur 17 (FB) and further a Bench decision of the Kerala High Court reported in AIR 1968 Kerala 213 (FB), which were cited with approval by their Lordships of the Supreme Court in Jamila Bai Abdul Kadar v. Shankarlal Gulabchand, AIR 1975 SC 2202 and also yet another decision of the Supreme Court in Employers Manoharbahal Colliery, Calcutta v. K. N. Mishra, AIR 1975 SC 1632, his Lordship recognised that a counsel for the party had implied authority to compromise a civil case on behalf of his client and there was no lack of authority in the action of the counsel. In para 9, his Lordship concluded that neither Order 23, Rule 3 C.P.C. debars a counsel from signing a compromise petition nor it interferes with his inherent right to enter into an agreement or compromise on behalf of his client and that the Court can act upon the compromise petition which is signed only by counsel for the parties and had not been signed by the parties personally. Then his Lordship referred to the observations of their Lordships of Supreme Court in the case of Smt. Jamilabai Abdul Kadar v. Shankerlal Gulabchand (supra) wherein their Lordships uphold the implied authority of legal practitioner to act by way of compromising a case in which he was engaged without specific consent from his client subject to two overriding considerations. Firstly, the counsel must act in good faith and for the benefit of his client, otherwise the power fails and secondly, that it is prudent and proper to consult his client and take his consent, if there is time and opportunity. If there is any instruction to the contrary or withdrawal of authority, the implicit power to compromise in the pleader will fall to the ground.
4. It is here pertinent to note that in the second appeal filed by Mohan Bai defendant against the compromise decree, she challenged the compromise decree only on the ground that compromise was not signed by the defendant and was only signed by her counsel, the same could not be acted upon by the Court and no compromise decree on its basis could be passed. The defendant or his counsel in Civil Second Appeal No. 101/82 which had been filed by the defendant against the compromise decree, did not contend that she or her husband had instructed their counsel Mr. Bansilal to take adjournment in the case for some other date or directed him not to compromise the case. The defendant could challenge the compromise decree on this ground in the second appeal, but she did not attack the compromise decree on this ground and as a result of the dismissal of her second appeal by this court on Jan. 2, 1983 (reported in AIR 1983 Raj 240), the compromise decree had attained finality and operated as res judicata. She is debarred from raising such plea in any proceedings which she chose to initiate Under Section 151 of the Civil P.C. The observations of the learned single Judge in Second Appeal No. 101 of 1983 while dismissing the second appeal that the application filed before First Appellate Court to set aside the compromise shall be considered by the Court on its own merits have to be read in the context in which these observations were made. When the learned single Judge, after having come to the conclusion that the counsel for the defendant had power to enter into compromise on behalf of the defendant and court could act upon the compromise signed by the counsel, was going to dismiss the appeal, it was the counsel for the defendant Mohan Bai, who of his own accord, stated that he had filed an application in the First Appellate Court for setting aside the compromise and the learned single Judge, accordingly left it to be decided on its own merits. As has already been stated, there was nothing to preclude Mohan Bai defendant to attack the compromise decree in Second Appeal No. 101 of 1983 on the ground that the defendant had given instructions to her counsel not to compromise the suit before the first appeal court or that he had withdrawn authority of the counsel to compromise. She, having not chosen to attack the compromise decree on that ground in Second Appeal No. 101 of 1983, cannot attack it by means of an application under Section 151 C.P.C. before the First Appellate Court. This is one aspect of the matter.
5. The other aspect is that it is well settled that the Court is not competent either in review or under its inherent powers to set aside the compromise decree on the ground that the consent of the parties or any of them was obtained by fraud or that the compromise decree was obtained by misrepresentation. The consent decree is contract between the parties and suit for adjudging it void and/or setting aside a decree on the ground of its having been obtained through misrepresentation or fraud lies under Section 31 of the Specific Relief Act whereunder a person against whom a void or voidable instrument, which includes a decree, and which causes serious injury can file a suit in Civil Court to get it cancelled. The petitioner did not file any such suit.
6. Learned counsel for the petitioner relied upon a single Judge decision of this Court in Ramkaran v. Shrikishan, reported in AIR 1976 Raj 130 This decision is very much distinguishable on facts. It has to be borne in mind that every decision on a point of law cannot be divorced from the facts and circumstances of the case in which it was given and to which the law laid down by it was applied. In Ramkaran’s case, Mr. C. L. Aggarwal had filed Vakalatnama signed by only one respondent Hardev. The other respondents neither signed any Vakalatnama in favour of Mr. C. L. Aggarwal nor they authorised him to act or plead on their behalf. Mr. C. L. Aggarwal had not produced any evidence to explain how he signed the reply on behalf of respondents when he was engaged by Hardev alone. Since Mr. C. L. Aggarwal did not hold any vakalatnama in the writ petition from other six respondents except Hardev, he had no authority to enter into the agreement on behalf of six respondents from which he did not hold Vakalatnama before the Board of Revenue to which the case had been remanded by the High Court in the writ petition. Thus in Ramkaran’s case, there was total lack of authority in Mr. C. L. Aggarwal to make any compromise or to enter into an agreement with the counsel of Ram Karan to get the decree passed from the Board of Revenue on 19th Mar., 1963 in accordance with the compromise. In such circumstances, in the second appeal against compromise decree, the learned single Judge of this Court held that since the compromise decree was passed under a mistaken belief or impression that Mr. C. L. Aggarwal was empowered to act and plead on behalf of the plaintiff-respondents, the lower Court had rightly held that respondents were not bound by the compromise-decree passed by the Board of Revenue. It may be stated that in Ram Karan’s case after the compromise decree had been passed, respondents (excluding Hardeo) had instituted a regular suit for grant of declaration that the agreement dt. 30th Aug., 1962 arrived at between Mr. P. N. Datta and Mr. C. L Aggarwal on the basis of which the decree of the Board of Revenue dt. 19th Mar., 1963 was passed may be declared void, illegal and inoperative. Petitioner, in the instant case, neither attacked the compromise decree in the Regular Second Appeal No. 101 of 1983 which he had filed against that decree in this Court nor by way of separate suit for declaration of the decree as in effective or for the cancellation of the decree. In Ram Karan’s case, there was complete lack of authority in Mr. C. L. Aggarwal to enter into an agreement and to get the compromise decree passed from the Board of Revenue in accordance with the agreement.
7. In case of Jamila Bai Abdul Kadar v. Shankarlal Gulabchand, (AIR 1975 SC 2202) (supra) also the tenant, after the passing of the compromise decree on 2lst Aprl. 1965, had instituted a Regular Suit No. 922/66 for declaration that the decree passed on the basis of a compromise entered into by his pleader without authority was not binding on him and, consequently, he was not liable to be dispossessed. Thus, in the above Supreme Court case also the compromise decree was challenged by a separate suit.
8. The petitioner in the instant case is in a worst position. Neither she challenged the compromise decree in this Regular Second Appeal No. 101 of 1983 against the consent decree nor by way of a regular civil suit for declaration of the decree as void or for cancellation of the decree with which she was otherwise bound because Mr. Bansilal, Advocate undoubtedly represented the petitioner as her counsel in the redemption suit.
9. In this view of the matter, the application filed by the defendant petitioner Under Section 151 of the Civil P.C. for cancelling the compromise decree was not maintainable. This petition was more in an abuse of the process of the Court rather than to prevent the abuse. It would be travesty of justice if a decree which had attained finality even from the High Court can be cancelled by the First Appellate Court on an application under Section 151 of Civil P.C. The remedy pursued by the defendant-petitioner of moving an application Under Section 151 of the Civil P.C. was ill-advised and misconceived.
10. Apart from that, the District Judge, Udaipur, after carefully examining the evidence produced before him, has correctly found a fact that the compromise was signed by Mr. Bansilal, Advocate with the consent of the petitioner and that it was entirely wrong that any other property was included in the redemption decree than that for which suit for redemption was filed by Jai Kishan, I have carefully gone through the reasoning given by the District Judge, Udaipur in this regard and without repeating the reasonings, I may state that the reasonings given are quite sound and his findings of fact cannot be interfered in revision.
11. Thus revision petition filed by Smt. Mohan Bai has no merit in it and it is hereby dismissed with costs to the non-petitioners which I assess at Rs. 300/-.