Law: Contract Act (IX of 1872)

Section: 20, 22

Law: Civil Procedure Code (V of 1908)

Section: 151, O. XLVII, r. 1

  (a) Contract Act (IX of 1872), Ss. 20 & 22-- Contract Mistake---Avoidance of contract on ground of its being void for mistake of fact---Both parties should be under mistake as to matter of fact essential to agreement--Contract not voidable because of one of parties only being under mistake as to matter of fact. (b) Civil Procedure Code (V of 1908), S. 151 and O. XLVII, r. 1---Compromise---Consent order, embodying agreement between parties, attacked on ground of fraud played upon party-Consent order cannot be set aside on a motion under S. 151, C. P. C. nor by invoking O. XLVII, r. 1, C. P. C. brat a separate suit should be brought to have it set aside. In a Letters Patent Appeal arising out of an administration suit, a compromise was effected between the parties and the Court passed a consent order which ran thus: "this appeal and the application for appointment of receiver are disposed of in accordance with the following consent order . . . . .". Thereafter an application under section 151, C. P. C. was moved by which the respondent sought certain modification of the consent order. It was alleged that the consent order was a result of fraud and therefore could be recalled by the Court under section 151, C. P. C. and Order XLVII, rule 1, C. P. C. The questions which arose for decision, therefore, were: (i) Under what circumstances the court may recall, vary or modify its order made with consent of the parties on a com promise arrived at by them; and (ii) What is the appropriate procedure for recall, variation or modification of such order. Held: If a consent order, embodying the agreement between the parties is attacked, then the proper course to have it set aside is to institute a separate action or proceedings for this relief. A judgment by consent is as effective as estoppel between the parties as a judgment whereby the court exercises its mind on a contested case. Thus, a consent judgment or order is as effective as a judgment or order passed by Court on contest between the parties. An order may be recalled on the ground of fraud under section 151, C. P. C. in exercise of the court's inherent jurisdic tion. But in such cases a…