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TMI Blog1909 (4) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... took the present defendant Bad shah Abrader as her second adopted son, on condition that she would continue in possession of the entire estate during her lifetime. Shortly after disputes broke out between herself and the natural grandfather of the defendant, who claimed to be entitled to the immediate possession of the properties on behalf of the infant. On the 20th January 1903, the plaintiff instituted a suit to set aside the adoption of the defendant and for declaration that she was entitled to remain in possession of the estate as the mother of her first adopted son. The matter in dispute between the parties was referred to arbitration and, on the 18th August 1903, a decree was made in accordance with the award of the arbitrators. It is not necessary for purr-present purposes to set out in detail the terms of the award. It is sufficient to state that its effect was to confirm the validity of the adoption of the defendant, to appoint the grandfather of the latter as his guardian, to place the entire estate under the management of the Court of Wards and to make various provisions for the education and maintenance of the infant, for the maintenance of the plaintiff, and for the ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplication for review of judgment. The sixth issue raised the question of the legal effect of the decree of 1904. The remaining seven issues raised various questions on the merits as to the limitation, estoppels, factum and validity of the adoption of the defendant, and the conditions, if any, subject to which it had been made. As previously stilted, the Court below has not enquired into the merits, and there has been no investigation into the truth or otherwise of the allegations of fraud, misrepresentation, coercion and undue influence. The Subordinate Judge has thrown out the suit on the ground that Sections 18 and 43 of the Code of 1882 preclude its trial, that the plaintiff is debarred by reason of her ineffectual attempt to review the decree of 1904, from attacking it by a regular suit, and that, if there are new allegations on which the decree is now sought to be impeached, they might and ought to have been made grounds of attack in the application for review. The Subordinate Judge has further held that the circumstances in which the consent-decree of 1904 is alleged to have been made, do not constitute fraud, and that in any view, the plaintiff is concluded by the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cking consent-decrees is that of Aushootosh Chandra v. Tara Prasanna Roy 10 C. 612 In this case it was ruled by Mr. Justice Wilson, with the concurrence of Mr. Justice Tottenham, that for the purpose of setting aside a decree passed in pursuance of a come made out of Court, there are two available modes of procedure, namely, first by : a suit and, secondly, by a review of the judgment sought to be set aside, the latter being the more regular mode of procedure. The rule thus laid down, if well-founded on principle, and really Supported by the authorities upon which the learned Judges relied, negatives the first contention of the appellant, the grounds of the decision, therefore, require: careful examination. In that case it appears that there were two appeals pending in the High Court in which the parties who were appellants in the one, were respondents in the other. Before the hearing of the appeals, negotiations for compromise were set on foot, as a result of which it was intimated to the Court that one of the appeals would have to be dismissed and the other decreed. The precise terms of the compromise were not placed before the Court, but decrees were ordered to be drawn up in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter the Commissioner approved the proposed compromise; and shortly after, the defendant applied for a review of judgment, alleging that his consent to the compromise had been obtained by fraud. The Subordinate Judge granted the review and his order was upheld in appeal by the High Court. Their Lordships of the Judicial Committee confirmed this view, on the ground that there was no compromise concluded in such a way as to prevent the character and particulars of the claim being reconsidered upon a petition of review. Lord Cairns pointed out expressly that provision was made in the original order to keep alive the right of either party, if dissatisfied, to have a petition of review. It is difficult to appreciate how this decision of their Lordships of the Judicial Committee can be treated as an authority for the proposition that an application for a review of judgment is an appropriate procedure to set aside a consent-decree on the ground of fraud. The second case upon which the learned Judges relied is that of Mewa Lal Thakoor v. Bhujun Jha 13 B.L.R. App. 11 : 2 W.R. 1.3. There the question arose in a suit to sot aside an ex parte decree on the ground of fraud. The District Judge ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10 C. 612. It is, however, in no sense authority for the proposition that an application for review of judgment furnishes the appropriate procedure in a case of this description. An examination, therefore, of the grounds of the decision of this Court in the case just mentioned, shows, first, that the decision of the Judicial Committee relied upon by the learned Judges is not an authority in support of their view; secondly, that the observations in the case of Mewa Lal Thakoor v. Bhujun Jha 13 B.L.R. App. 11 : 2 W.R. 13 upon which reliance was placed were not necessary for the purpose of the decision in that case, and that their binding effect has been very much weakened by the decision of their Lordships of the Judicial Committee in two subsequent cases; and thirdly that the observations of Sir George Jessel in Gilbert v. Endean 9 Ch. D. 259 do not support the view that a consent-decree can be reviewed on the ground of fraud, though they no doubt support the proposition that such a decree can be attacked in a new action on the ground of fraud. It may further be observed that the consent decree in the case of Aushootosh Chandra v. Tara Prasanna Roy 10 C. 612 was not impeached on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he case of Foolcoomary Dasi v. Woodoy Chunder Biswas 25 C. 649 it was ruled by Mr. Justice P.O. Kenealy that a consent decree could not be set aside on motion on the ground that it was obtained by fraud and misrepresentation, but that a separate suit must be brought for that purpose, as charges of fraud could not properly be tried upon affidavits. The learned Judge pointed out that the course which he adopted was identical with what had been followed in such cases in the High Court of Judicature in England under the Judicature Acts. We shall deal later on with the decisions in the English Courts upon this point, to some of which the learned Judge referred in his judgment. 5. In the case of Barhamdeo Prasad v. Banarsi Prasad 3 C.L.J. 119 the question was raised as to whether a consent-decree could be set aside upon an application for review. Upon an examination of the earlier decisions on the subject, it was ruled that, where a decree was regular in itself and on the face of it correct, it could be set aside only by a suit, so that where a plaintiff sought to set aside a decree based on compromise entered into by his guardian when he was an infant, merely on the ground that the com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplication for review of judgment, the suit in so far as it was based upon the allegation of want of authority of the pleader was barred by the rule of res judicata, as the matter had been directly and substantially in issue in the proceeding for review of judgment, and that, in so far as it was based upon the ground that the consent related to matters outside the scope of the litigation, it was equally barred by the doctrine of constructive res judicata as this particular ground might and ought to have been made a ground of attack in the review proceeding. With reference to this case, it must be observed that the consent-decree was not sought to be impeached on the ground of fraud, and, the decision, therefore, is not a direct authority upon the question now before us. As regards the actual grounds of the decisions it may be observed that the learned Judges merely followed the rule laid down in Aushootosh Chandra v. Tara Prasanna Roy 10 C. 612 the authority of which was apparently not challenged before them. Their attention does not appear to have been directed to the circumstance that the observations in that case wore not only not necessary for the decision of the question then ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the decisions of their Lordships of the Judicial Committee-in Ram Kirpal v. Rup Kuari 11 I.A. 37 : 6A. 269 and Beni Ram v. Nanhu Mal 7 A. 102 : 11 I.A. 181 in which it was ruled that an order made at one stage of execution proceedings is binding upon the parties at every subsequent stage. It has similarly been ruled by their Lordships of the Judicial Committee in Mungul Pershad Dichit v. Grija Kant Lahiri 8 C. 51 : 8 I.A. 123 : 11 C.L.R. 13 that the omission of a party in execution proceedings to take at one stage an objection may debar him from taking the same objection at a subsequent stage, when the effect of such objection, if allowed to be taken, would be to nullify an order previously made, in other words, an objection which might and ought to have been taken at an earlier stage, must be deemed to have been taken and overruled. These cases, however, do not lay down any rate of universal application that an order in any proceeding between two litigants debars the trial of the same question between the same parties in a subsequent proceeding, no matter what the scope of the subsequent litigation may be and no matter what were the circumstances in which it might have been comme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay be reviewed on the ground of fraud. 9. The question now before us appears to have been raised before the Bombay High Court in Mirali Rahimbhoy v. Rehmoobhoy Habibbhoy 15 B. 594. In that case a suit on behalf of three infant plaintiffs was compromised. One of the plaintiffs upon attainment of majority obtained a rule to show cause why the consent-decree should not be set aside and the suit heard on the merits. The rule was discharged on the ground that the decree was regular and could be set aside only by a regular suit. This case is, therefore, a direct authority for the position that a consent-decree cannot be vacated on motion. The learned Judges declined to follow the observations of this Court in Eshan Chundra Safooi v. Nundamoni Dassee 10 C. 357 to the effect that when a suit on behalf of an infant has been compromised by fraud and collusion between the guardian and the defendants, the infant, upon attainment of majority, might relieve himself from the consequences of the fraud in one of three ways, namely, first, by an application to the Court in the suit in which the withdrawal took place, secondly, by a regular suit to set aside/the judgment founded upon the withdrawal, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses, for instance, cases of clerical error in a consent-decree in which an application for review of judgment would furnish a speedy and appropriate remedy. But even if it be conceded that Section 623 is applicable to cases where a consent-decree is sought to be reviewed on the ground that the consent was obtained by fraud, misrepresentation, coercion or undue influence, or was due to a mutual mistake of the parties, there are weighty reasons why a regular suit should be regarded as the more appropriate remedy in such a case. It must not be overlooked that a character of finality is attributed to the decision upon an application for review which it is undesirable should be possessed by any investigation of a Court of first instance into grave charges of fraud. Section 629 of the Code of 1882 provides that an order of the Court rejecting an application for review shall be final. It is also clear from the same section that although an order for the admission of review is open to appeal, the appeal is restricted to extremely narrow grounds other than those on the merits. The order granting a review can be challenged on appeal only on the ground that it was made to a Judge who was inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... et aside such judgment a fresh action is necessary. In such an action the Court has jurisdiction to set the judgment aside on the ground of mistake or any other ground on which an agreement in the terms of the order would be set aside, but not on any other ground. So if a judgment has been obtained by fraud, relief may be had against it by original action. (Daniel on Chancery Practice, 7th Edition, Vol. 1585). In another passage in the same work (Vol. 11, 1289) it is stated that "a judgment taken by consent cannot be set aside by an action of review, unless by a clerical error something has been inserted in the order as by consent which has not in fact been consented to. 12. The principles thus formulated have the sanction of a long series of judicial decisions of the highest authority. Thus in one of the earliest cases on the subject Webb v. Webb 3 Swanston 658 Lord Nottingham in summarily dismissing a bill of review of a decree by consent, observed that, there can be no error in a decree by consent, consensus tollit errorem; there can be no injustice in a decree by consent, volenti non fit injuria." Again in Smith v. Turner 1 Vernon 274; Lord Keeper North dismissed a b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he issue, and wholly free from and unembarrassed by any of the matters originally tried. In Attorney General v. Tomline 7 Ch. D. 388 Mr. Justice Fry thought that, after a judgment by consent has been passed and entered, it could not afterwards be varied on the ground of mistake, except for reasons sufficient to sot aside the agreement. In Gilbert v. Endean 9 Ch. D. 259 to which reference has already been made, Sir George Jessel observed that the question whether a compromise which formed the basis of a consent-decree was invalid, ought to be made the subject of a new action. This view was accepted by Mr. Justice North in Emeris v. Woodward 43 Ch. D. 185 in which it was ruled that the compromise of an action could not be set aside on motion, and that, if the claim was well-founded, it ought to be raised by means of a fresh action. The question arose again in the case of Huddersfield Banking Company v. Lister (1895) 2 Ch. D. 273 is which an application was made to set aside a consent order on the ground that the parties gave their consent under a common mistake. Mr. Justice Vaughan Williams ruled that the matters could not be set right on motion, and his view was affirmed by the Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at very case an action was then commenced to set aside or rectify the consent decree on the ground of mistake, and the order made by consent and based upon an intent to carry out the agreement come to between the parties was set aside because there was no real agreement between them, as they were not ad idem by reason of mistake as to the subject-matter of the contract. Widding v. Sanderson (1897) 2 Ch. 544. See also Horrocks v. Stubbs 74 L T 51. There is only ore other case to which reference is necessary in this connection. In Neale v. Lennox (1902) App. Cas 465 : 1 S.E.C. 309, a decree was made by consent by counsel who exceeded his authority. Before the order had been drawn up the plaintiff took steps to set it aside on the ground that it had been made without her authority and consent and contrary to her express instructions. The Lord Chief Justice set aside the order and directed the action to be restored on the list. The Court of appeal reversed this order. Upon appeal to the House of Lords, the order of the Court of Appeal was discharged, Lord Lindley in his speech (at page 473) proceeded on the assumption that the application was made after the order had been drawn up and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Equity, Pleading and Practice, Section 104, and Black on Judgment, Section 319, in which it is pointed out that although a Court cannot alter or correct a judgment by consent, except with the consent of all the parties affected thereby, yet it has power in a regular suit to vacate and set it aside on the ground of fraud, mutual mistake, or surprise (See also Encyclopedia of Pleading new Practice, Vol. III, 572, Vol. V, 960.; Vol. XV, 233). In one of the earliest case on the subject, French v. Shotwell 5 Johnson Ch. 555 Chancellor Kent, upon the authority of the decision of Lord. Hardwicke in Bradish v. Gee 1 Ambler 229 held that it was a settled doctrine that a decree by consent was binding unless procured by fraud, in which case the party may be relieved against it by an original bill. To the same effect is the decision in Walsh v. Walsh 116 Mas 377, 17 A Rep. 162 in which Chief Justice Gray held that a decree made by consent of counsel without fraud or collusion, cannot be set aside by re-hearing, appeal or review. This last case was affirmed by the unanimous decision of the Supreme Court of the United States in Thomson v. Maxwell 168 N.S. 465 in which Mr. Justice Brewer stated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e merits or equities of the case. The only questions to be determined by it are, whether the parties are capable of binding themselves by consent and have actually done so. These are the two facts to be determined before the Court orders a decree to he entered, and when thus entered, showing on its face that it is by consent, it is absolutely conclusive upon the consenting parties. It cannot be amended, or varied in any way without the consent of all the parties affected by it, nor can it be re-heard, vacated, or set aside by the Court rendering it, nor can it be appealed from or reviewed upon a writ of error; the only way in which it can be attacked or impeached is by an original bill on the ground of fraud or material mistake." The rule is stated in substantially the same terms in Bewaer v. Jones 114 N.C. 644, 19 S.E. 163. We refer to the English decisions on the subject as well as to the American decisions which adopt and follow the English rule, not because they are in any sense authorities binding upon this Court, but merely because they indicate plainly that the rule that a consent-judgment ought to be attacked on the ground of fraud or mistake not by way of motion or re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und of fraud. In order to determine whether a suit would be barred by reason of an unsuccessful application for review of judgment we have to consider whether the two remedies are alternative or cumulative. We have already indicated our opinion that the remedy by way of a regular suit is undoubtedly more appropriate than the remedy by an application for review of judgment. The two remedies, therefore, cannot be regarded as parallel and equally efficacious. Consequently no question of election of remedies arises in a case like this. That a litigant may have more than one remedy open to him in respect of the same matter is obvious from various provisions of the law; we may mention as illustrations the cases of a regular suit after an unsuccessful opposition in execution to an intended sale or after an unsuccessful obstruction by a claimant other than the judgment-debtor to delivery of possession of properties sold, or after an unsuccessful effort by a claimant to recover possession of land by a possessory action. It cannot be affirmed as a general proposition of law that, whenever there are two remedies open to a party aggrieved in respect of any matter, he is bound at his peril to m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hus laid down by the House of Lords had been applied in substance in earlier cases; see for instance, Moses v. Macferlan 2 Burrows 1005 at 101 and Buck-land v. Johnson 15 C.B. 145. In the second of these cases it was ruled that when there had been a conversion of goods, the party injured might either treat the conversion as a wrongful act and recover the value of the goods at the time of the sale in an action of trover, or adopt the sale as an act done with his sanction and sue for the proceeds as for money had and received to his use; if he elected the former course, he was bound by it and could not have a new action for money had and received. The principle has also been recently applied by Mr. Justice Farwell in British Homes Assurance Corporation v. Paterson (1902) 2 Ch. 404 in which that learned Judge relied upon the decision of the House of Lords in support of the proposition that, where A had the choice of his two inconsistent remedies, one against B, the other against B and C jointly, if he made his election and adopted the remedy against B, he could not subsequently fall back upon the other remedy. 17. The question of election of remedies has been frequently considered by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ggrieved has had first recourse to what is undoubtedly the less appropriate of two remedies, and then seeks to avail himself of the more regular mode of relief. The principle in question was explained by Mr. Justice Sullivan in the recent case of State v. Bank of Commerce (1900) 61 N.W. 406. The defence of waiver by election." Says Wells J. in Conniham v. Thomson 123 Mass. 270 arises where the remedies are inconsistent, as when one action is founded on affirmance and the other on disaffirmance of a voidable contract for sale of property. In such cases, any decisive act of affirmance or disaffirmance, if done with the knowledge of the facts, determines the legal rights of the parties once for all. Before a case can arise for the application of the principle of election, there must be, first, two co-existing remedies, and, secondly, these remedies must be so inconsistent that a party cannot logically choose the one without renouncing the other. An apt illustration of the rule is found in some of the cases in which it is held that one who has sued on the theory of an unauthorized act done in his name has been ratified, cannot afterwards maintain an action on the theory that such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pursuit of an alternative remedy. The case before us, however, is reasonably free from any such difficulty. No intelligible principle has been suggested upon which the view can be maintained that the remedy by a regular suit is inconsistent with the remedy by a review. The object of the two proceedings is the same, namely, to obtain a reversal of the consent-decree which it is alleged is vitiated by fraud, misrepresentation, coercion, or undue influence. The allegation of facts are substantially the same. The only difference is that the allegations in the suit are fuller and more comprehensive than those in the application for review of judgment, and the determination in the regular suit is likely to be more searching than what is possible upon an application for review of judgment, and the correctness of the determination in the suit will be liable to be tested by a Court of Appeal. In these circumstances it is impossible to say that the two remedies are inconsistent. The fact, therefore, that the plaintiff has failed in the application for review is not a sufficient ground to debar her from the prosecution of her remedy by a regular suit. 18. As we have previously seen, the ord ..... X X X X Extracts X X X X X X X X Extracts X X X X
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