1. NOORUL ARFIN, J.----The questions which arise before us are (i) under what circumstances the Court may recall, vary or modify Its order made with the consent of the parties on a com--promise arrived at between them, and (Il) what is the appropriate procedure for recall, variation or modification of such order. The questions arise on these facts: One Abdur Rehman, belong--ing to District Sialkot, had extensive business in Uganda and was seized and possessed of considerable movable and immovable properties in Uganda and in Pakistan. He died on 9th Decem--ber 1963 leaving a widow (the appellant No. 1), two daughters (appellants No. 2, and No. 3) and two sons (respondents Nos. 1 and 2) The appellant No. 1 was the second wife of Abdur Rehman and is the step-mother of appellant No. 2 and respon--dents No. 1 and No. 2 and real mother of appellant No.
3. The appellant No. 1 says that it was she who really brought up the two respondents and the appellant; No. 2, as when their mother, Mst. Aziz Bibi, died in 1931, the appellant too. 2 was two to three Years' old, the respondent No. 1 was four years old and the respondent No. 2 was five years' old only. The appellant No. 1, Mst. Muhammad Bibi, is, in fact the sister of Mst. Aziz Bibi, the first wife of Abdur Rehman. Amongst the main assets alleged to have been left by the deceased Abdur Rehman are immovable properties in Sialkot, agricultural farm measuring 86 acres in District Hyderabad a multi-storeyed building known as "R.G.M. Square" on Nauman Street, Karachi, an incomplete building known as "R.G.M. Market" in block No. 4 of Nazimabad, Karachi, shares in R.G.M.
2. Motors Limited, a company incor--porated in Pakistan, and various immovable and movable properties in Uganda. R.G.M. Motors Limited owns plot and building No. D/136, S.I.T.B. Karachi consisting of show-rooms, offices, workshops, and residential tenements. According to the appellants' averments, the capital of R.G.M. Motors Limited is Rs. 21,69,030.00 divided into shares of Rs. 100.00 each. Out of this shareholding 3361 shares stand in the name of the respon--dent No. 1;3365 in that of respondent No. 2 and 3367 were retained by the deceased in his own name. Since the deceased was a foreign national and resident, therefore, to comply with the regulations of the State Bank of Pakistan 10,000 shares of Rs. 100.00 each were shown 1n the name of one Ghulam Nabi, who is the brother of respondent No. 1's wife. According to the appellants, the two respondents and Ghulam Nabi held the shares in R.G.M. Motors Limited "Benami" for the deceased Abdur Rahman, and that other movable and immovable properties purporting to stand in the names of the two respondents were, in fact, the property of the deceased and the two respondents were the only "Benamidars" for him. The respondents' contention is that all the assets which stand in their names belong to them exclusively and were never held by them "Benami" for the deceased, and that whatever assets the deceased had were left to the two respondents by his will which reads as follows "WILL AND TESTAMENT This is the last will and testament of ours Mr. Abdul Rehman, Mr. Abdul Ghani and Mr. Abdul Majid of P. O. Box 274, Kampala, which we make this sixteenth day of January, 1959, and whereby we revoke all previous wills and testamentary dispositions.
3. We give all our property real and personal, which may be in any part of the world, to the survivors among us for their benefit. The wife or wives of the deceased remain within the family as is customary so also the unmarried daughters of the deceased."
4. According to the appellants, this will is a forgery, and, In any case, cannot operate against the rules of Muhammadan Law, the appellants, the respondents and the deceased all being Sunni Muslims by faith. Serious disputes developed between the parties, so that the present appellants brought an administration suit 1n the High Court, being Suit No. 221 of 1969. In this suit, appellants made an application under Order XL. Rule 1, C. P. C. For appointment of a receiver of the estate left by the deceased. But this application was dismissed by a learned Single Judge on the Original Side of the High Court by an order dated 10 Decem--ber 1969, though the learned Judge considered it necessary to give the following directions to protect the property which was the subject-matter of the suits: "(i) The defendants would not, during the pendency of this suit, dispose of or encumber, the assets, mentioned in the schedules to the plaint without first obtaining the permission of this Court. This will not, however, affect the right of the R.G.M. Motors Ltd. To obtain "cash credit facilities from the banks on hypothecation of stock in the normal course of business".
(ii) The defendants will maintain a true, faithful and correct account of the business conducted under the names of R.G.M. Motors Ltd., and also an account of the receipts, and outgoings, in respect of the other immovable properties and shall file copies of the same in this Court every six months.
(iii) Pending disposal of the suit the plaintiffs will not be disturbed from the premises presently fn their occupation and the defendants shall continue to pay them the monthly allowance as admitted by defendant Abdul Ghani in paragraph 17 of his, counter-affidavit dated 9 September 1969"
5. The appellants were aggrieved with this order and also with the, failure of the respondents to comply with the earlier order mad& on the Original Side and which was to the following effect:- "During the course of arguments, it transpired that the plaintiffs bled a rejoinder today. The learned counsel for the defendant wants time. Adjourned. It is agreed by the counsel for the defendant that the maintenance which was-- previously being given to the plaintiffs by the defendants shall be restored and the defendants shall continue to pay the maintenance till the disposal of the application for receiver--ship."th th The appellants, therefore, brought Letters Patent Appeal No. 14 of 1970 to challenge the order of the learned Single Judge by which he dismissed the application under Order XL, rule 1, C.P.C. In this appeal, the appellants again made an application for appointment of receiver. The appeal as well as this application were put up in Court on 4-3-1971, when, by order of the Court, appeal was admitted to regular hearing. But, as regards the application for appointment of Receiver, It was directed that notice should go to the respondents for the next day, that is, 5th March 1970. Two sets of notices were ordered to be issued, one set of notice to be served on the learned Advocate who represent--ed the respondents on the Original Side, which direction was in accordance with the practice which prevails in this Court, and the other set was ordered to be served on respondent No. 3, who was, stated to be the attorney of respondents No. 1 and No. 2. On 5th March 1970, the case again came up before the Court. Mr. Muzaffar A.I Khan, who represented the respondents on the Original Side made appearance but stated that he had no instruc--tions from the respondents.
6. But, at the same tune, he made a. Written application under Order XVII, rule 1, C.P.C. For adjourn-- ment, which was quite inconsistent with his stand that he had no-I instructions from the respondents. As regards the respondent No. 3, he stated on oath before us that he held power of attorney from respondents Nos. 1 and 2, under which he was em--powered to defend the appeal, but that he had received oral instructions from the respondents Nos. 1 and 2 that her should not act under the power of attorney (which was produced by respondent No. 3 as L.P.A. No. 1/1) with regard to the litiga--petition between the appellants on the one hand and the respon--dents No. 1 and No. 2 on the other without specific and clear instructions from the two respondents. The two respondents were themselves then out of Pakistan and consequently the Court bad to pass the following order: "This matter had come up before us yesterday. We admitted it to regular hearing. As regards C.M.A.
7. No. 349 of 1970 under Order XL, rule 1, C. P. C. We thought it proper to send notice to the respondents in the first instance. Accordingly, under our directions, the notice was served for today's hearing on the respondents' counsel on the Original Side as well as on respondent No. 3, who Is the attorney of respondents 1 and 2. Mr. Muzaffar A.I, counsel on the original side, appeared today and stated that be had no instructions. After having made this statement, he moved an application under Order XVII, rule 1, C. P. C. For adjournment. We pointed out to him that once he states that he has no instructions In the case, that is, that he has not been engaged for this appeal, he is not competent to make any application under Order XVII, rule 1, C. P. C. Mr. Muzaffar A.I then vehemently argued for adjournment of the matter and we repeatedly pointed out to him that once be had made the statement that he had no in--structions and had not been engaged in this appeal, it was futile, rather unnecessary, that he should at all address us In this appeal. He even made the suggestion that if we at all appointed the receiver, then it should be the Official Assignee and no one else.
8. As regards respondent No. 3, he holds a power of attorney. We examined him on oath. In the course of his evidence he produced the power of attorney which has been brought on record as Exh. L. P. A.
9. 1/1. To us, it would appear, that under this power of attorney the respondent No. 3 Is competent to defend the proceedings before us. But respondent No. 3 stated that he had received oral instructions from respondents 1 and 2 that he should not act under this power of attorney with regard to the present litigation without specific and clear in--structions which he would receive from the first two respondents from time to time. It is rather curious that respondents 1 and 2 should have given these instructions, In spite of the General Power of Attorney, to respondent No. 3. Be that as it may, respondent No. 3 admitted that he is only an employee. He has no personal interest in the business or in the assets which are the subject of the administration suit. On the other hand, the appellants claim substantial interest in the assets left by the late Mr. Abdul Rehman.
10. Coming now to the merits of the question, we will refrain from giving any opinion at this stage as we propose to make an order which would be in the nature of only an ad interim order, in view of the fact that respondents 1 and 2 are not represented before us. It appears that late Mr. Abdul Rehman left a will for which probate has been obtained from the High Court at Kampala, Uganda.
11. By this will, all the assets of the deceased have been left to his two sons Abdul Ghani and Abdul Majid and the deceased's widow and his two daughters, who are the appellants, receive nothing from the deceased's assets. Mr. Zari says that the deceased was a Hanafi Muslim and there--fore, he could not dispose of all his assets and leave them to his two sons as the Hanafi School of law does not permit such a course. Under the rules of Hanafi law, a Muslim can leave only one-third of his property by will to a stranger. But if one-third of the property is being left by will to any of the heirs then the consent of the other heirs has to be obtained after the death of the deceased. Now, the appellants contend vehemently that this will is totally devoid of any legal force and they cannot be deprived of their inheritance merely because the deceased decided to leave his whole property to his two sons, thereby depriving the appellants of any share in his assets. This is a point which will have to be considered when the respondents make appearance before us. But some thing has to be done to protect the interests of the appellants who are three ladies, one being the widow of the deceased and the two being his daughters. The learned Single Judge thought that their interest could be protected if a direction was given to the respondents not to dispose of, or encumber, any of the properties mentioned in the Schedule to the plaint without first obtaining the permis--sion of this Court and that the respondents shall maintain true and correct account of the business of R. B. M. Motors and other properties and file copies of these accounts in this Court every six months. With respect to the learned Single Judge, we think that these directions will not afford safeguards to the three appellants who appear to be helpless household women. The appeal which has come before us is from a suit which is in the nature of an administration suit. The Courts have quite often, in suits of this nature, appointed receivers to protect the interests of the heirs or of such persons who claim to be the heirs of the deceased. In our opinion, the facts of this case call for an appointment of a receiver. We will, therefore, appoint the Official Assignee as a receiver of the deceased's properties mentioned in the schedule to the plaint by way of ad interim order. We order accordingly."
12. It may be added that the business of R.G.M. Motors Ltd. Shall be carried on by the Official Assignee through its Manager, namely, Col. M. S. Malik. As regards the buildings, which are four in number, it is stated that there is not much difficulty in recovering the rent thereof. These buildings may be managed by the Official Assignee directly who would also receive the rent.
13. "The maintenance which is to be given to the appellants shall be paid by the Official Assignee out of the rents of these buildings as per order of the learned Single Judge. If any further orders are required with regard to maintenance, it is open to the appellants to make the necessary application."
2. The learned Single Judge, whose judgment was under appeal in Letters Patent Appeal No. 14 of 1970, directed conti--nuance of payment of maintenance allowance to the appellants on the basis of the counter-affidavit dated 9th September 1969, of Abdul Ghani sent from Kampala, Uganda. In paragraph 17 of this counter-affidavit, it was stated by Abdul Ghani that he was paying maintenance allowance at the rate of Rs. 2,000.00 to the appellant No. 1, Rs. 700.00 to respondent No. 3's husband and Rs. 1,000.00 to respondent No. 2's husband, and that he had allowed the respondents to live on plot No. D/136, S. I. T. E., Karachi, free of all rents and water and electric charges and charges on other amenities.
3. It will be noted that the order made on 5th March 1970, was only in the nature of an ad interim order subject to recall, variation or modification when the first two respondents made due appearance before the Court. The respondents did make appearance in the proceedings. The case was partly heard on 29-4-1970, when Mr. A. A. Zari addressed the Court on behalf of the appellants and Mr. Khalid M. Ishaq on behalf of the respondents. The case was adjourned for further proceedings .To 26 5-1970, as there was a suggestion at the bar for compromise between the parties, for which the parties wished to await the return of respondent Abdul Ghani from Uganda. The case again came up before the Court on 26th May 1970, when the following consent order was made on the statement of Mr. A. A. Zari, who was assisted by Mr. Aijaz A.I, and Mr. Khalid M. Ishaq, who was assisted by Mr. Muzaffar A.I Khan: "This appeal and the application for appointment of receiver are disposed of in accordance with the following consent order:-
(1) The receiver appointed in this appeal is discharged, but out of the monies lying with him he will appropriate a -sum of Rs. 1,890.00 as his fees as well as the salary for the Agricultural Assistant which he employed for the agricultural farm near Hyderabad.
(2) The monthly rental income of two properties, namely, R. G. M. Square and R. G. M. Workshop, S. I.
14. T. E., comes to Rs. 22,000. Out of this amount, the respondent shall .Deposit in Court with the Nazir before the 15th of every month .Commencing from June 1970, Rs. 7,500.00 which is one-third of the monthly rental income claimed by the appellants. Out .Of this monthly deposit of Rs. 7,500.00, the Nazir will pay monthly maintenance to the three appellants commencing from June 1970 as follows:-- (i)
15. Mst. Muhammad Bibi Rs. 2,000.00 (ii)
16. Mst. Ghulam Zohra.
17. Rs. 1,000.00 (iii)
18. Mst. Ghulam Fatima.
19. Rs. 700.00 The balance of the monthly deposit shall be kept by the Nazir in the fixed deposit with the Habib Bank Ltd., High Court Branch, Karachi.
(3) If there are three consecutive defaults on the respondents' part in making deposits as aforesaid, the Official Assignee shall take over the aforesaid buildings as receiver.
(4) The balance which will remain in the hands of the receiver shall be paid by him to the respondents to enable them to pay the salaries of the staff of R. G. M. Motors.
(5) The prohibitory order against the respondents to the effect that they will not sell or dispose of the properties standing in their names or in the name of the deceased in Pakistan shall continue and accordingly this prohibitory order is confirmed hereby so that pending hearing of the suit these properties shall neither be sold, encumbered or otherwise disposed of la any manner without the permission of the Court.
20. By way of clarification, it is added that the first monthly-- deposit shall be made by the respondents before the 15th of lure 1970."
21. This order, therefore, finally disposed of the Letters Patent Appeal No. 14 of 1970, and is, therefore, in the nature of a final Judgment !n appeal.
4. On 28th August 1972, Mr. Muzaffar A.I, on behalf of respondents 1 and 2, made an application under section 151,. C. P. C. Being Miscellaneous Application No. 1170 of 1972, by which he sought modification of the consent order dated 26-5-1970, to the effect (i) that the respondents 1 and 2 be required, to pay one-third of the rental income of R. G. M. Square only, and not one-third of the said building as well as plot and building No. D-136, S. I. T. E., Karachi, (b) to permit these respondents to withdraw from the Nazir Rs. 92,943.00 which they had, deposited at the rate of Rs. 7,500.00 per month in terms of clause 2 of the consent order dated 26-5-1970, and (c) to require the appellant to furnish continuing security for the sum of Rs. 3,700.00 being drawn by them monthly out of the deposits being made by the respondents 1 and 2 with the Nazir of the Court. The respondents' justification for this modification of the consent order is contained in paragraphs 7 to 14 of the application dated 28th August 1972. In brief, the justification put forth by the respondents to seek variation or modification of the consent order dated 26-5-1970 was that the Premier Tobacco Company Ltd. Which was in occupation of a part of plot and, building No. D/136, S. I. T. E., Karachi at the monthly rental: of Rs. 10,064.00 had had to vacate the said promises on account of the threat of the Sind Industrial Trading Estate Ltd. To forfeit the lease on the ground that sub-lease had been granted against their consent to the Premier Tobacco Company Ltd. And that one of the tenants of R. G. M. Square, namely, West Pakistan Management Association, who were paying a rent of Rs.
22. 2,143.00 had also vacated the premises in their occupation, and therefore the rental income had been reduced by Rs. 12,143.00 and, further, that there were heavy demands for payment of urban property tax and Karachi Municipal Corporation taxes on these properties in paragraph 4 of this application an allegation is male, rather in strange terms, that the appellants wilfully included In the administration suit properties which in fact belong to the first two respondents. Thus, the justification pleaded in this application to seek the variation and modification of the consent order dated 26-5-1970 was the inconvenience being faced by the respondents in depositing Rs. 7,500.00 per month with the Nazir of the Court on account of the reduction in the monthly rental Income.
23. This application was put up before us on 14-9-1972, when the Court, by its order of the same date, suggested to Mr. Muzaffar All that, if the respondents were facing any real difficulty in obtaining permission of the Sind Industrial Trading Estate Ltd., to grant sub-lease of a portion of D/136, S. I. T. E., Karachi, or in renting out portions of R. G. M. Square, then the Court, without appointing any Receiver, may depute an officer of the Court to obtain the requisite permission from the Sind Industrial Trading Estate Ltd., and arrange for leases both in D/136, S. I. T. E. And R. G. M. Square.
24. However, this sugges--petition was not accepted by the respondents. The application dated 22nd August 1972, was heard by us on several dates and we pointed out one difficulty to Mr. Muzaffar A.I, that is, that the order dated 26-5-1970, by which the Letters Patent Appeal No. 14 of 1970, was finally disposed of, being a consent order made on a compromise arrived at between the parties, may not be set aside except on grounds on which a contract can be set aside, such as fraud, mistake, coercion, etc. And that even if these grounds or any one of them did exist, the proper remedy may not be by way of an application under section 151. C. P. C. Or even an application under Order XLVII, rule 1, C. P. C. But by way of a separate suit. Mr. Muzaffar A.I appreciated this difficulty. Consequently, on 19-9-1972, one Muhammad Yaqoob, attorney of the respondents Nos. 1 and 2, filed an affidavit, in which the contention was taken that the property D/136, S. I. T. E., Karachi was the property of R. G.
25. M. Motors Ltd., which was an independent juristic person, and not a party to the administra-- petition suit, from which the Letters Patent Appeal No. 14 of 1970, arose, and therefore this property could not lawfully be made a subject-matter of this appeal. On 16th November 1972, this Muhammad Yaqoob filed another affidavit on behalf of the respondents in which the contention was repeated that property No. D/136, could not be legally made the subject-matter of Letters Patent Appeal No. 14 of 1970, and additionally the following further grounds were taken in support of the application dated 22-8-1972:--
(i) that at the time the consent order was made finally disposing of the appeal, the respondents 1 and 2 were under a bona fide belief that only one-third of the actual rental Income .Of R. G. M.
26. Square was required to be deposited in the Court, ,and therefore the inclusion of the rental income of D/136, S. I. T. E., Karachi was a mistake on the part of the respondents and that this mistake would justify the variation and modification of the consent order dated 26-5-1970;
(ii) that this consent order is in the nature of an interim order, .End it could be varied or modified in the interest of justice;
(iii) that the two respondents gave consent to the order dated 26-5-1970 under mental tension, in that on 8th April 1970, the passport of respondent No. 1 had been impounded by the Court and a notice of contemptwas issued to him as well as the Manager of the National and Grindlays Bank Limited on statements made in the affidavits of the appellants.
27. With regard to the contention that consent of the respondents 1 and 2 to the order of 26th May 1970 was given under mental tension, we consider it necessary to refer to a few relevant dates. On 10th April 1970, the appellants' application, that is, Civil Miscellaneous Application No. 580 of 1970 came up in Court alleging that three cheques issued by the Official Receiver appointed by the Court, in the sums of Rs. 2,000.00, Rs. 1,000.00 and Rs. 700.00 in favour of the appellants 1, 2 and 3 respectively, bad been refused payment by the Manager of the National and Grindlays Bank Ltd.
28. On the instigation of the respondent No. 1, the grounds for such refusal being that the respondents 1 and 2, being foreign residents, permission of the State Bank of Pakistan was necessary to operate this account, Although the account had been continuously operated upon without any interruption by the respondent No. 3 as attorney of the respondents 1 and 2, and that the respondent No. 1, who was on a temporary visit in Karachi, was creating difficulty in the administration of the estate by the Official Receiver. The appellants prayed for Issue of notice of contempt to the National and Grindlays Bank Ltd. And to the respondent No. 1. These notices were ordered to be Issued for 14th April 1970, on which date, when the case came up before the Court, apology was tendered both by the Manager of the National and Grindlays Bank Ltd., as well as by the respondent No. 1, and therefore notice of contempt was discharged. It is incorrect to say that the passport of the respondent No. 1 was impounded. He was merely directed to. Bring his passport in the Court, but on 15th April 1970, notice of contempt against him having been discharged he took away the passport with him. On this very date, that is, 15th April 1970,. Mr. Muzaffar A.I made an application to summon Mst. Muhammad Bibi, the appellant No. 1, for cross-examination. Mr. A. A. Zari received notice of this application, but requested for time to file counter-affidavit. The consideration of this application was postponed to 22nd April 1970. On this date, the case could not be reached and the case was again postponed to 29th April 1970, when, as mentioned above, arguments of both the parties were partly heard. It was on 29th April 1970, that there was a suggestion between the parties inter se for compromise and the parties desired an adjournment to await the return of Abdul Ghani to Karachi.
29. Accordingly, the hearing was adjourned to 26th May 1.970, on which date the parties stated before the Court the compromise reached between them, and accordingly a consent order was made on that very date finally disposing of the Letters Patent Appeal. It is, therefore, not correct that the two respondents were under any rental tension on 26th May 1970, when the consent order was made.
30. Long before this date, the notice of contempt against the respondent No. 1 had been discharged on his tendering apology to the Court. With regard to the mistake in including in the con. Sent order the S. I. T. E. Property belonging to R. G. M. Motors Ltd, it was brought to the notice of Mr. Muzaffar A.I Khan that the consent order of 26th May 1970 expressly refers to this property, and this reference was on the basis of the statement made to the Court by the learned Advocates of the parties, and therefore there was no question of mistake. It was further brought to the notice of Mr. Muzaffar A.I that to avoid a contract on the ground that it is void for mistake, both parties to the contract should be under a mistake as to a matter of fact essential to the agreement, as required by section 20 of the Contract Act and, further, under section 22 of the Contract Act, a contract is not voidable because one of the parties only is under a mistake as to a matter of fact. In view of these provisions of the Contract Act, no arguments were addressed to us on the effect of the alleged mistake on the respondents' part on the consent order of 26th May 1970. Mr. Muzaffar A.I shifted to two other grounds, that is, that the consent order of 26th May 1970, was a result of a fraud, and therefore could be recalled by the Court under section 151, C. P. C. And Order XLVII, rule 1, C. P. C. And that sine: this consent order affected the plot and building No. D/136, S. I. T. E, the property of R. G. M. Motors Ltd., which is an independent juristic person distinct from its share--holders, the consent order and the agreement on which it was based were void under section 23 of the Contract Act, as these constituted injury to the property of a third party. On this second contention being put forth, we specifically asked Mr. Muzaffar All on 4-12-1.972 that, if we agreed with him that the agreement of compromise as well as the consent order of 26th May 1970 were void under section 23 of the Contract Act, then whether he would require us to recall the whole consent order or merely confine his remedy to its variation and modification sought in the application dated 22-8-1970.
31. Mr. Muzaffar A.I took time to consider this position and on 11-12-1972, he made a statement in Court that he did not wish that the whole order dated 25th May 1970 be recalled and that he desired merely modification of this order in terms of the prayer contained in his application dated 22nd August 1970. Thus Mr. Muzaffar A.I in effect gave up the contention that the agreement of compromise and the consent order passed thereon were void under section 23 of the Contract Act.
32. However, we will have occasion to refer to this aspect of the case later in the course of this judgment.
5. Mr. Muzaffar A.I was, therefore, left with these arguments only, that is, (i) that the consent order in question had been procured by fraud and should therefore be varied and modified, but not recalled totally, and (ii) that the consent order is in the nature of interlocutory order, and It had become Impossible or difficult for the respondents 1 and 2 to carry out its terms, and therefore it was a proper case for the Court to vary the terms of the consent order. Before we proceed to discuss these contentions, we may refer to the Privy Council decision in Charles Rubert Kirsch v.
33. Edward Keith Walcott and others (AIR 1929 P C 289) with regard to the nature of a consent order or decree. Their Lordships observed that an order by consent, not discharged by mutual agreement and remaining unreduced is as effective as an order of the Court made otherwise than by consent and not discharged on appeal, and that a party bound by a consent order must when once it has been completed obey it, unless and until be can get it set aside in proceedings duly constituted for the purpose. With regard to the difference between an order made by consent and one not so made, their Lordships stated that the first order stands unless and until it is discharged by mutual agreement, or is set aside by another order of the Court, and the second order stands unless and until it is discharged in appeal. These observations were made with regard to a suit for accounts, in which the question was whether certain charges withdrawn and abandoned by the appellant in a libel action against him, which ended in a consent order, could still be enquired into in the suit for accounts. It was contended before their Lordships that the consent order, which ended the action in libel against the appellant on certain terms, including the expression on record of apology by the appellant, was a nullity, and therefore the consent order in the original action was not a bar in the subsequent suit brought for accounts. This argument was rejected by their Lordships, who stated that the consent order embodying an agreement, which may be voidable at the instance of the appellant, would stand until it had been effectively set aside in an action or proceedings directed to that special act. We understand these observations to mean that, 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. In re: South American & Mexican Company, Ex parte, Bank of England ((1895) 1 Ch. 377) it was held that 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. The question now is, C under what circumstances such a judgment or order may be recalled or varied. We will first take up the contention of Mr. Muzaffar A.I that a judgment or order by consent may be recalled or varied, if it is procured by fraud, either under section 151, C. P. C. In exercise of the inherent jurisdiction of the Court, or under Order XLVII, rule 1, C. P.
34. C. Which contains provisions for review. As regards Order XLVII, rule 1, C. P. C., we ate doubtful whether it is applicable in the particular circumstances of the case before us, where we are asked to recall or vary a consent judgment or order on the ground of fraud. A judgment, decree or order may be reviewed on the ground of discovery of new and important matter or evidence or on account of some mistake or error apparent on the face of the record or for any other sufficient reason. With regard to the ground of "sufficient reason", it was held In Chajjuram v. Neki and others (AIR 1922 P C 112) that this ground is to be interpreted as meaning a reason sufficient on grounds at least analogous to those specified immediately previously in rule 1 of Order XLVII, C. P. C., that is discovery of new and important matter or evidence or mistake or error apparent on the face of the record. But an order may be recalled on the ground of fraud under section 151, C. P. C in exercise of the Court's inherent jurisdiction. But in such cases a distinction is made between `fraud' played upon the Court and 'fraud' played upon a party. In the former case, the order may be recalled by the Court in the same proceedings in which it was made in exercise of its inherent jurisdiction. In the second case, it is necessary to set aside the order by a separate action or proceedings directed to that particular act. Since Mr. Muzaffar Ail vehemently insisted that an order procured by fraud, whether fraud is played upon the Court or upon a party, can be recalled or varied in the same proceedings 4n which it was made in exercise of the Court's inherent jurisdiction, we found it necessary to refer to the decided cases on the point, though to us, we would venture to say, the rule is now well settled that when fraud is alleged, It is only in cases of fraud played upon the Court that an order may be recalled in the same proceedings in which it was made. We will first refer to the decisions of the High Court of Calcutta on this point. To first case which comes to our notice is Foolcoomary Dast v. Woodoy Chundsr Biswas (I L R 25 Cal. 649). In this case, a consent decree was attacked on the ground of fraud played upon a party. It was held that such a decree cannot be set aside on a motion, but a separate suit should be brought to have it set aside. In Barhamdeo Prasad and another v. Banarsi Prasad ((1906) 3 C L J 119), it was held that a compromise decree, which is alleged to have been obtained fraudulently, could be set aside only by a fresh suit, and not by an application for review. However, the learned Judges, who decided this case, made an exception in favour of a decree against a minor passed on a compromise entered into by his guardian, which decree could be reviewed, if it was apparent on the face of the record that there was no enquiry by the Court In granting the decree into the circumstances that led to the filing of petition of compromise, nor was any leave granted to the guardian to compromise the suit, as required by section 462 of the Civil Procedure Code of 1882. This exception, therefore, would come in the category of mistake or error apparent on the face of the record within the meaning of Order XLVII, rule 1, C. P. C. In Mst. Gulab Koer v. Badshah Bahadur ((1909) 13 C W N 1197), the Court held that when a consent decree is sought to be attacked on the ground of fraud, misrepresentation, mistake, coercion or undue influence or on any similar ground, the appropriate remedy is by way of a separate suit. Another decision of the High Court of Calcutta, Peary Choudhry v. Sonoory Dass (AIR 1915 Cal. 622), related to a decree which was alleged to have been obtained by fraud played upon the Court, and it was held that the Court has not only power, but it is its duty to set aside such a decree. Thus, this case related to a fraud played upon the Court, and not upon the party. The decision in J. C. Galstaun v. Pramatha Nath Roy and others (AIR 1929 Cal. 470) related to a case in which a consent decree was alleged to have been obtained by fraud played upon the party. E.
35. Rankin, C. J. And Ghose, J., held that neither section 151, C. P. C., nor Order XLVII, rule 1, C. P. C. Could to invoked for setting aside such a decree and the proper course was to proceed by a separate suit.
36. This view was reiterated in Suresh Chandra Sah v. Jogesh Chandra Sah and another (AIR 1939 Cal.
37. 658), which was again a case of consent decree, which was alleged to have been obtained by fraud played upon a party. Another decision of the High Court of Calcutta Akina Bibi and others v.
38. Muhammad A.I Shah and others (AIR 1941. Cal. 336) was with respect to fraud played upon the Court, in that a consent partition decree was obtained on a compromise allegedly signed by all the parties. But, later on, it turned out that one of the parties was not even aware of this partition suit and had not signed the compromise. It was held that section 151, C. P. C. Could be invoked to have this consent decree set aside in the same proceedings in which it was passed.
6. We will next turn to the decisions of the High Court of Bombay. In Basangowda Hanmantgowda Patil and others v. Churchigirlgowda Yogangowda and another (I L R 34 Bom. 408), a compromise was signed by a pleader on behalf of the defendant and the Court therefore passed a compromise decree. The defendant then applied to the Court to set aside the decree on the ground that he neither engaged the pleader, who had signed the compromise, nor did he authorise him to compromise Vie suit. It was held that such a decree could be set aside in exercise of the inherent power of the Court. This is a case in which fraud was riot only played upon the defendant, but also upon the Court, as the pleader, who signed the compromise on behalf of the defendant, in effect made a misrepresentation to the Court that he was duly engaged by the defendant arid was authorised by him to sign the compromise. In Yusuf Ismail Bhai Abdullahbhai Lalji v. Abdullabhai Lalji and others (AIR 1932 Bom. 615), the Bombay High Court hid that a consent decree or order in the nature of a judgment can be set aside only by a suit, but that interlocutory consent orders can be set aside in the same shit. As to the observation with regard to the interlocutory orders, we will refer to this judgment again when we deal with Mr. Muzaihar A.I's argument on the variation or setting aside of a consent interlocutory order. In a subsequent decision, Keshav Ramkrishna Bhart Phadke v. Subba Manga Naik and others (AIR 1939 Bom. 490), the High Court of Bombay, while reiterating this view, held that a consent decree mar be set aside in the same Quit in which it was made, if it was shown that the pleader, who signed the application for compromise, was not authorised to negotiate or settle the terms of the compromise. In this respect, the Court followed its earlier rule laid down in Basangowdae HGnmantgowda Patil and others v. Churchigirigowda Yogangowda and another. These cases, however, would not be applicable to Advocates of High Courts: but lay down the rule with regard to powers of pleaders to enter into compromise.
7. We will next turn to the decisions of the High Court of Patna. The first cases in point are Sadho Saran Bat and others v. Anant R.I and others (AIR 1923 Pat. 483) and Chutur Prasad Sah v. Mi.
39. Bishuni Kuer and another (AIR 1943 Pat. 13), in which it was held that where there is absence of total consent of one party to a compromise, then it ii case of fraud practised on the Court and the decree obtained in this way could be recalled under section 151, C. P. C. This view was reiterated in Smt. Sabttri Thakurain v. F. A. Savi and others (AIR 1927 Pat. 354(2)). In another decision, Sheodhar Prasad Singh and others v. Ramdeo Prasad Singh and others (AIR 1934 Pat. 229), it was held that a compromise decree could be set aside in the same suit by an application under section 151, C. P. C., if it was obtained by practice of fraud on the Court, but that if fraud was practised on the party, then the only remedy is by way of a suit. In these decisions, distinction between fraud practised on Court and fraud practised on party was clearly recognised. Mr. Muzaffar A.I, however, contended that another decision of Patna, Bindeshwari Pd. Chaudhry v. Debendra Pd. Singh and others (AIR 1958 Pat. 618) fully supported his contention that a consent decree or order obtained by fraud, whether practised on Court or on party, could be recalled under section 151, C. P. C. We have carefully gone through this decision and would point out that it was a case of fraud practised on Court, in that an order was made recording a compromise between parties to certain proceedings, but it later on turned out that some of the parties did not at all sign the compromise and their signatures on the compromise had been forged. Thus, ft was a case of total absence of consent of some parties to the compromise and therefore a case of fraud practised on Court through forgery.
40. Such an order could properly be recalled under section 151, C. P. C.
8. On the question under discussion there have been important decisions of the High Courts in Pakistan. The first case of importance is the decision in Grindlay's Bank Limited v. Murree Brewery Company Limited (PLD 1954 Lah. 745), in which a Division Bench, presided over by Muhammad Munir, C. J., and Ortcheson, J., held that in law a judgment or order, however high or independent the tribunal delivering or making it and however exclusive its jurisdiction, is a nullity if it be proved that it was obtained by fraud, and this fraud may be proved not only in the proceedings in which it was committed but also in a suit to set aside the judgment or order, and that since fraud vitiates all proceedings, and a lower Court in a suit properly constituted is certainly competent to set aside a judgment of a higher tribunal if it be proved that such judgment was obtained by fraud, it must a fortiori follow that a Judge of the High Court sitting singly has jurisdiction to pass such order provided the issue whether the judgment was obtained by fraud properly comes up before him.
41. At first reading, this judgment would appear to support Mr. Muzaffar A.I's contention, but on going through it carefully, it will be found that their Lordships were dealing with a case of fraud practised on Court. In that case, certain directors of a limited company obtained an order, on making certain representations, from a Division Bench of the High Court for holding a general meeting of the company. Subsequently, a shareholder of the company made an application under section 151 and Order XLVII, rule 1, C. P. C. To the High Court for review and recall of the earlier order on the ground of various irregularities set forth in the application. This application was heard by only one learned Judge of the Division Bench which had made the earlier order for the calling of the general meeting of the company, as the other learned Judge was unable to sit on the Bench. The learned Single Judge, who heard the application under section 151 and Order XLVII, rule 1, C. P. C. Found that the earlier order had been obtained by deception played upon the Court. Therefore, the observations of their Lordships in the Lahore decision were made with regard to a case in which it had been found that an order had been obtained by practice of fraud on the Court itself. A later Lahore decision, Muhammad Yousaf v. Tajammal Hussain and others (PLD 1972 Lah. 565), has held that provisions of section 151, C. P. C. And Order XLVII, rule 1, C. P. C. Could not be invoked in a case where the allegation is that an order had been obtained by practising fraud on a party. The same view was taken in the Dacca decision, Ganesh Chandra Basu v. Bashu Lasker and others (PLD 1958 Dacca 295), in which again a distinction was made between fraud practised on the Court and fraud practised on a party to the proceedings, and it was found that where a compromise application Is filed on behalf of the party, who was not at all aware of the compromise and did not sign it, nor authorised anybody to file the compromise application, it was a case of practice of fraud on the Court.
9. We have been at pains to point out the distinction between a case in which fraud is practised on Court, in which case an order obtained by such fraud may be set aside in exercise of the inherent powers of the Court in the same proceedings In which it was made, and a case in which fraud is practised on a party to the proceedings, the proper course wherefore is by way of a separate action or proceedings to set aside the order. We found it necessary to discuss this point at length, because Mr. Muzaffar A.I would not agree that a distinction should be made between fraud practised on the Court and fraud practised on the party to the proceedings and to the proposition that the correct legal position is that an order may be recalled under section 151, C. P. C. If it is obtained by fraud practised on the Court. The question arises whether the consent order dated 26- 5-1970, by which Letters Patent Appeal No. 14 of 1970 was finally disposed of, was obtained by fraud practised on the Court. Mr. Muzaffar All contended that, even if the legal position was as we have pointed out to be, then in the instant case a fraud was practised on the Court, in that property No. D/136, S. I. T. E., Karachi, was included in the Administration Suit No. 221 of 1969, and in the Letters Patent Appeal No. 14 of 1970 and in the application under Order XL, rule 1, C. P. C. Moved in this appeal, although this property was owned by R. G. M. Motors Ltd., a distinct, independent and juristic person. In other words, what Mr. Muzaffar A.I wished to impress upon us is that a misrepresentation was made to the learned Judge on the Original Side and to the Letters Patent Bench that this property was the property of the late Abdur Rehman, and not of R. G. M. Motors Ltd., and that the Court was kept in complete ignorance with regard to the real state of affairs. We are unable to accept the position that the Court, whether on the Original Side, or on the Appellate Side, was ignorant of the real state of affairs with regard to the ownership of property No. D/136 S. I. T. E., Karachi. In the order of the learned Single Judge on the Original Side, dated 10th December 1969, note was taken of the argument of Mr. Khalid M. Ishaq, the learned Advocate for the respondents No. 1 and No. 2, that this property belonged to R. G. M. Motors Ltd., which was not a party to the suit at all. It was against this order that the Letters Patent Appeal No. 14 of 1970 was brought and this order was before the Letters Patent Bench throughout. Again, the judgment of the learned Single Judge, while disposing of the application under Order XL, rule 1, C. P. C., gave certain directions, one of which was that none of the properties mentioned In the schedule to the plaint, including D/136 S.
1. T. E., Karachi, should be disposed of, or encumbered, by the defendants without first obtaining the permission of the Court. But this direction was qualified by the further direction to this effect-- "this will not, however, affect the right of R. G. M. Motors Ltd. To obtain cash credit facilities from the banks on hypothecation of stock in the normal course of business." Another direction of the learned Single Judge was that the defendants, that is, the respondents before us, shall maintain true, faithful and correct account of the business conducted under the name of R. G. M. Motors Ltd. And also an account of the receipts, and outgoings In respect of the immovable properties. In the counter---affidavit of respondent Abdul Ghani dated 13th April 1970, in reply to the application under Order XL, rule 1, C. P. C. Made by the appellants in Letters Patent Appeal No. 14 of 1970, the point was specifically stated that property No. D/136 S. I. T. E., Karachi was the property of R. G. M.
42. Motors Ltd. The order of the learned Single Judge and this counter-affidavit were before the Letters Patent Bench when the application under Order XL, rule 1, C. P. C. Was heard on 29th April 1970. It is, therefore, Incorrect to say that the real position with regard to the ownership of property No. D/136 S. I. T. E. Was suppressed, or concealed, from the Court. It is no doubt correct that by an ad interim order a Receiver was appointed of various properties, (including this property. But whether the Court would have continued receivership of this property or not is a different question altogether and would have rested on the arguments of the parties if Letters Patent Appeal No. 14 of 1970, or the application under Order XL, rule 1, C. P. C. Made therein, had been decided on contest between the parties. When this position was brought to the notice of Mr. Muzaffar A.I, he asked us as to how then the rental income of this property was included in the consent order dated 26-5-1970. This question should brave more appropriately been addressed to the respondents No. 1 and No. 2. Be that as it may, one of us sat on the Letters Patent Bench, which passed the consent order of 26th May 1970, and which had also heard the parties on 29th April 1970. The arguments with regard to this property had proceeded in this way: The appellants contended that all the assets standing in the names of the first two respondents, or in the name of R. G. M. Motors Ltd. Were part of the estate of the late Abdur Rehman; that all the shares of R. G. M. Motor- Ltd. Were, likewise, part of the estate of the late Abdur Rehman, and that the first two respondents held these shares era "Benami" for the deceased, and. After his death, they held these assets, including the shares in R. G. M. Motors Ltd. As trustees for the appellants to the extent of the appellants' share in the estate of the late Abdur Rehman. The first two respondents, on the other hand, contended that they were the sole and exclusive owners of the assets standing in their names and of the total share-holding in R. C. M.
43. Motors Ltd. And were, therefore, alone entitled to receive the income of various businesses and properties. It was also the appellants' case that, since the first two respondents were claiming to be the sole owner of the total share-holdings in R. G. M. Motors Ltd. And were receiving the income of the property D/1 -6 S. I., T. E. To the exclusion of all other heirs of the deceased Abdur Rehman, they should be many accountable for the shares of the appellants in this income. This was how the case proceeded, when the following order was made by the Court on 29th April 1970: "This case is partly heard. There is a suggestion for compromise between the parties but one of the respondents, namely, Abdul Ghani has not returned from Uganda and he will be coming back in the month of May. We, therefrom, adjourn the further hearing to 26-5-1970."
44. On 26-5-1970, the appeal was finally disposed of by the consent order in question. It will here be useful to ascertain as to what actual provision is made in this consent order. Firstly, the prohibition contained in the judgment of the learned Single Judge on the Original Side, dated 10th December 1969, against the disposal and encumbrance of the properties mentioned in the schedule to the plaint was confirmed. Even without such confirmation, the prohibition against the disposal or encumbrance of these properties, which included properly D/136 S. I. T. E. Would have continued to be effective, because there was no appeal by the first two respondents against this judgment.
45. Secondly, the payment of Rs. 3,700.00 as monthly maintenance allowance to the three appellants ordered under the judgment of the learned Single Judge was continued. It has been noted above that the direction of the learned Single Judge with regard to the maintenance allowance was in consequence of the admission contained in paragraph 17 of the counter-affidavit dated 9 September 1969 of Abdul Ghani. It may here be added that by order dated 29-9-1969, the first two respondents Muhammad had already agreed to restore, and to continue, the payment ofthis monthly maintenance allowance to the appellants. They did not appeal either against this order or against the direction for payment of monthly maintenance allowance contained in the judgment of the leaned Single Judge dated 10 December 1969. Actually there was only one new provision in the consent order of 26th May 1970 by which the letters Patent Appeal No. 14 of 1970 was finally disposed of. The appellants maintained that the total rental income of property D/136 S. I. T. E. And R. G. M. Square was Rs. 22,000.00, and that they were entitled to one-third of this rental income, which came to Rs. 7.500.00. Therefore, it was agreed that out of Rs. 7,500.00, Rs. 3,700.00 would continue to be paid to the appellants as their maintenance allowance and the balance shall be deposited by the respondents in Court every month. This prevision for deposit of the balance would appear to have been made to meet the appellants' claim that their total share in the rental income came to Rs. 7,500.00. But the balance was not made payable to the appellants, but was required to be deposited in Court to be disbursed according to the result of the administration suit. It will thus be seen that the whole judgment in appeal in Letters Patent Appeal No. 14 of 1970 was maintained, but with a new provision, on the agreement of the parties, that tie difference between the appellants claim to the share of Rs. 7,500.00 in the rental income and the monthly maintenance allowance of Rs. 3,700.00 would be deposited in Court to await the result of the administration suit.
46. This being the position, we fail to understand how it is a case of fraud practise on the Court. As regards fraud practised upon the first two respondents, neither of these two respondents has come forward to swear his own affidavit supporting the allegation that fraud was practised on them or either of them. All affidavits in support of the application dated 22-8-1972 for variation or modification of the consent order dated 26-5-1970 have been sworn by one Muhammad Yaqoob as attorney of the respondents No. 1 and No. 2. But axis Muhammad Yaqoob was not in the picture at all up to the time the consent order of 26th May 1970 was made. It has not been explained to us at all a9 to why the respondents No. 1 and No. 2 should have refrained from swearing an affidavit that fraud was practised upon them and that the real position with regard to the ownership of Property D/136 S. I. T. E. Was suppressed or concealed from the Court.
10. According to Mr. Muzaffar A.I, the consent order of 26th May 1970 was only an interlocutory order, and therefore according to the rule laid dawn in the Madras decision, Venkatalingam Nayanim Varu v. Inagaunte Venkatarama Rao and others (AIR 1921 Mad. 234(1)), this order could be recalled, varied or modified. But, in our opinion, it would be an error to treat the consent order of 26th May 1970 as an interlocutory order only. It was an order by which the Letters Patent Appeal No. 14 of 1970 was finally disposed ofand decided, and therefore this order is in the nature of a finalth th judgment so far as that appeal was concerned. However, even if It be assumed that this order is in the nature of an interlocutory order, this would not lead to the conclusion: that it may be recalled, varied or modified just on the application, of a party effected thereby. In Maharajadhiraj Sir Rameshwar Singh Bahadur v. Hitendra Singh and others (AIR 1924 P C 202), the Judicial Committee of the Privy Council, following its earlier decisions in Ram Kirpal v. Rup Kuari ((1884) 6 All.
47. 269) and G. H. Hook v. Administrator---General of Bengal and others (AIR 1921 P C 11) held that an interlocutory order in a suit has as much binding force as a final judgment given on contest between the parties, and therefore the rule of res judicata applies to such orders, as it would apply to final judgments and decrees and that the application of this rule of res judicata was not dependent upon section 11 of the Civil Procedure Code but upon the general principles of law. It may be noted that, in this case, their Lordships stated the rule with regard to the binding nature of an interlocutory order in a case in which a decree---holder had consented to the appointment of a Receiver of the. Judgment-debtor's property, and then subsequently applied for the Receiver's discharge. This second application vas dismissed on the ground that the earlier consent order operated as bar to the trial of the second application. This is the legal effect of an interlocutory order, whether it be a consent order or an order on contest between the parties. But we must here take note of the Bombay decisions in which the view has been expressed that an interlocutory consent order may be set aside or varied, in the same proceedings in which it was made, by a proper application. These decisions are Yusuf I. A. Lalji and others v. Abdullahbhoy Lalji and others (AIR 1930 Bom. 362) and Yusuf Ismail Bhai Abdullabhai Lalji v. Abdullabhai Lalji and others. But, in both these cafes, it was held that the grounds for recall, variation or modification of a consent interlocutory order should be the same on which the Court would set aside, vary or modify a consent judgment or decree, that is, such grounds as fraud, misrepresentation, mistake or any other ground which would invalidate an agreement. In. The second case, it was further held that mere convenience of a party is not a good ground for setting aside an interlocutory, consent order.
48. A consent interlocutory order, according to the Judicial Committee of the Privy Council, may be set aside on other grounds oho. Thus in Jamnabai v. Fazalbhoy Heptoola and others (AIR 1923 P C 184), it was held that a consent order may be set aside if a serious and substantial injustice to a party is clearly shown, though, in that case, the Judicial Committee of the Privy Council refused to interfere with the consent order. In a subsequent decision, Meharojadhiraj Sir Rameshwar Singh Bahadur v. Hitendra Singh and others it was held that a consent order for appointment of a Receiver, though it bars a second application for discharge of a Receiver, may be vacated if the administration of a Receiver is of such a character that it amounts to malfeasance and would accordingly release the consent order or has been proved by experience to be in substance so protracted and Imperfect as to be futile. In the instant case, no question of malfeasance or futility arises or even of any injustice. The only ground put forth by Mr. Muzaffar A.I to support his demand for variation of the consent order of 26th May 1970, is that the first two respondents are facing serious difficulties in complying with the order of Court in depositing Rs. 7,500.00 every month out of the rental income, Rs. 3,700.00 out of which sum is payable as maintenance allowance every month to the three appellants. But, as has been noted above, mere convenience or inconvenience of a party is not a good ground for interfering with a consent order. Further, the two respondents have failed to substantiate their contention that they are, in fact, facing any difficulty in complying with the order under which they are required to deposit Rs. 7,500.00 every month in Court. They have, of course, said that the Premier Tobacco Company Ltd., which was paying monthly rent of Rs.
49. 10,064.00 had vacated the property No. D/136 S. I. T. - E. Under threats of the Sind Industrial Trading Estate Ltd. To evict the R. G. M. Motors Ltd. From this property on the ground of grant of unauthorised sub-lease. But the correspondence between the Sind Industrial Trading Estate Ltd. And the respondents has not been placed before us, nor was any trouble talon to satisfy us that the respondents made genuine efforts to obtain permission from the Sind Industrial Trading Estate Ltd.
50. To grant sublease of a portion of the Property No. D/136 S. I. T. E. Even the lease deed, which allegedly prohibits sub-leases, has not been placed before us. We will again refer to what we have said above, that 1t was suggested to Mr. Muzaffar All that the Court may, without appointing a Receiver, authorise an officer of the Court to negotiate with the Sind Industrial Trading Estate Ltd.
51. For permission to grant sub-leases of property No. D/136 S. I. T. E, and to negotiate with other parties for leases of portions of this property as well as of the R. G. M. Square. But this suggestion did not prove agreeable to Mr. Muzaffar A.I. We shall also note here that it has not even been satisfactorily proved that the Premier Tobacco Co. Ltd, left the property No. D/136 S. I T. E. Because the sub-lease granted to it was claimed to be contrary to the provisions of the lease deed between the Sind Industrial Trading Estate Ltd. And the R. G. M. Motors Ltd. The respondents would not even agree to inspection of the property in question to ascertain whether any portion thereof ck as in fact vacant or had fallen vacant, or even to permit enquiry whether portions of these properties could not be leased out to other parties. Even if we were to assume that a consent order may be set aside on the ground of inconvenience to a party, our finding is that the first two respondents have not shown that they are in fact facing any inconvenience or difficulty in giving effect to the consent order of 26th May 1970. Before we end our discussion on this particular contention of Mr. Muzaffar A.I, we will again advert to the Madras decision, Venkatalingam Nayanim Varu v. Inagunte Venkatarama Rao and others. In that case, a Receiver appointed by consent of the parties was later in the course of the proceedings found to be unnecessary by the Court, as one of the parties having acquired the interest of the other parties to the suit, it was found that there was no longer any dispute which would lead to mismanagement or waste to justify the continuance of the Receiver. But this is not the position in the case before us. The appellants and the first two respondents are very much in contest with each other. The respondents obtained the discharge of the Receiver by the consent order dated 26th May 1970, on undertaking to deposit in the Court Rs. 7,500.00 per month, out of which Rs. 3,700.00 were payable every month to the appellants for their maintenance. The balance is to remain in deposit to meet the appellants claim that they are entitled to one-third of the total rental income until the decision of the administration suit. It cannot, therefore, be said that any of the provisions of this consent order have become unnecessary, and therefore the order should be varied.
11. At the end, Mr. Muzaffar A.I contended that the consent order of 26th May 1970, affects the property D/136, S. I. T. E, which belongs to R. G. M. Motors Ltd., who are not a party to the suit at all and who were not represented before us. In this connection, Mr. Muzaffar A.I referred to section 23 of the Contract Act, which provides that the consideration of an agreement is unlawful if it involves injury to a person or property of another, and therefore the agreement itself will be void. According to Mr. Muzaffar A.I, since the consent order of 26th May 1970 wakes the property of R. G. M. Motors Ltd. Subject to the control of the Receiver, if the direction contained in that order as to Receiver takes effect, and this constitutes injury to the property of R. G. M. Motors Ltd., and therefore the agreement on which the consent order is based is void. But Mr. Muzaffar A.I was not prepared for the recall of the whole order of 26 May 1970. He does not want the deletion from this order of the clause by which the Receiver would take charge of R. G. M. Motors Ltd.'s property, D/136, S. I. T. E. It has remained incomprehensive to us as to why Me. Muzaffar A.I should not have insisted on either the total recall of the consent order by reason of the provisions of section 23 of the Contract Act or deletion therefrom of the clause which provide, for receiver to take charge of G. M. Motors Ltd.'s property. What Mr Muzaffar A.I actually wants is that the respondents should be required to nay only Rs. 3,700.00 per month instead of Rs. 7,500,00 per month, and that they should be allowed to withdraw a substantial sum which has accumulated in Court under their monthly deposits of Rs.
52. 7,500.00, Be that as it may, Mr. Muzaffar A.I's contention under section 23 of the Contract Act hasth force, and he is supported by case-law, even though he declined to the this contention to its logical conclusion that the whole consent order should be recalled or at least that portion of it which affects the property of 2. G. M. Motors Ltd. The first case, to which we would refer, is a Full Bench decision is Unnoda Dabee v. Maria Louisa Stevenson ((1883) 22 W R 290), in which it was held that a compromise decree obtained by one "F" with regard to a property to the prejudice of his daughter, who was not party to the appeal, in which this compromise was arrived at, could be reversed in exercise of the inherent powers of the Court. We would refer here to two Karachi decisions on this point. The first case is Mir Attaullah Khan v. Sardar Mahboobali Khan and others (PLD 1965 Kar.
53. 341), in which the view was taken that a decree in a suit affecting a minor may be set aside under section 151, C. P. C., if it is made in the absence of a properly constituted guardian. The second case is that of Muhammad Irfan Azad v. Mst. Sultana Begum and others (PLD 1971 Kar. 91) in which a compromise preliminary decree tri are administration suit gas set aside under section 151, C. P. C, as it affected the interests of the minors and was passed without the presence of a properly constituted guardian of the minors. It should, however, be noted that this view was taken, because the learned Judge was of the opinion that, as only preliminary decree had been passed in the administration suit, the suit way still pending, and therefore section 151, C. P. C. Could rightly be invoked. Reference may also be made to the decision of the Privy Council in The Bolivar AIR 1916 P C 85, which was relied upon in Muhammad Irfan Azad v. Mst. Sultana Begum and others, The Privy Council held that an ex parte judgment of condemnation of the Prize Court could be set aside to enable bona fide claims being made by parties, who had not been heard at all and who had no opportunity of appearing. It is an arguable point whether the role laid down in the Boliver would be applicable in proceedings other then Prize Court proceedings. But none of these cases is strictly in point as regards the controversy before us, except to the extent that these cases would, that in those cases in which the decision was based on compromise, appear to apply the rule contained in section 23 of the Contract Act, that an agreement is void, if it constitutes injury to a person or his property if he is not a party to the agreement. In this case the view can legitimately be taken that R.
54. G. M. Motors Ltd. Were throughout present before the Court. The first two respondents claim to the only shareholders and directors of this Company. They were present before the learned Single Judge whose judgment was impugned in Letters Patent Appeal No. 14 of 1970, as well as before the Division Bench which decided this appeal. Further, the respondents did not take any objection to the Inclusion of R. G. M. Motors Ltd.'s property within the ambit of the order of the learned Single Judge against which Letters Patent Appeal No. 14 of 1970 had been preferred. However, we do not consider t necessary to discuss this point further, as Mr. A. A. Zari, the learned Advocate for the appellants, as well as these appellants themselves, filed a statement in writing fn Court that paragraph 3 of the consent order may be amended to delete therefrom R. G. M. Motors Ltd.'s property D/136 S. 1. T. E. We will reproduce this statement hereunder "Without prejudice to the rights, contentions and claims of the Appellants (plaintiffs in Suit No. 221 of 1969 (Mohd. Bibi and others v. Abdul Ghani and others), the appellants have no objection if para. 3 of the Consent Order dated 26-5-1970 passed in the above matter is modified to read as under: 'If there are three consecutive defaults of the respondents' part in making deposits as aforesaid, the Official Assignee shall take over the building known as R. G. M. Squarer situated at Noman Street, Off M. A. Jinnah Road, Karachi as receiver'."
55. Since the appellants themselves agree to the modification of the consent order, in that they now do not seek appointment of Receiver of the property of R. G. M. Motors Ltd., we suo mote order that paragraph 3 of the consent order dated 26th May 1970 will be substituted by the following paragraph: "If there are three consecutive defaults on the respondents' part in making deposits as aforesaid, the Official Assignee shall take over the building known as R. G. M. Square situated at Noman Street, Off M. A. Jinnah Road, Karachi as receiver."
12. With this modification, we dismiss the respondents' Civil Miscellaneous Application No. 1170 of 1972, dated 22nd August 1972 by which they sought the variation and modification of the consent order of 26th May 1970. The appellants shall have costs of these proceedings.