P L D 1971 Dacca 112 (PLP)

A. S. CHOWDHURY, J.‑This appeal is at the instance of the defendant Hossain Ali Khan and directed against the judgment and decree passed by Mr. A. M. Hossain, District Judge, Pabna on the 9th October 1961, reversing those of Mr. S. Ahmed, Subordinate Judge, 1st Court, Pabna on the 27th April 1960, and it arises in the following circumstances. Plaintiff Firoza Begum instituted a suit claiming maintenance for herself as a wife of the defendant and also for a minor son born in lawful wedlock. That suit was compromised and a decree was obtained in terms of the petition of compromise. The present suit has been instituted by the plaintiff on the allegations that the compromise decree was obtained by the defendant by practising fraud as she was not aware of the terms of compromise and that it was filed without her knowledge. The suit was contested by the defendant who denied the allegations of fraud and contended that the solenama was signed by the plaintiff Firoza Begum herself after having been aware of the contents and that she received a sum of Rs. 2,300, in consideration of the compromise. The learned Subordinate Judge reached the conclusion that the plaintiff signed the solenama with a full understanding and knowledge of its contents and that she was paid a sum of Rs. 2,300 as asserted by the defendant. The learned Subordinate Judge further held that there was no fraud in effecting the compromise and dismissed the suit with costs. On appeal, the learned District Judge reversed the decision of the trial Court mainly on the ground that the compromise itself was hit by section 23 of the Contract Act and as such the decree in terms of the said contract which was void was to be set aside. Mr. Kamaluddin Hossain appeared for the defendant, Hossain Ali Khan. No one appeared for the respondent, Firoza Begum. In response to our request Mr. Syed Mohsin Ali, learned Advocate appeared in this matter as amicus curiae. We place on record our appreciation of the able assistance we received from him. It was urged before us on behalf of the appellant that the compromise decree in the suit was not obtained by fraud and as such the present suit is not maintainable. It was also urged that the plaintiff Firoza Begum has obtained consideration of the compromise as found by both the Courts and as such she was not entitled to a decree on account of her already having derived benefit out of the compromise under challenge in the suit. In support of Mr. Hossain's contention that a compromise decree can only be set aside on the ground of fraud reliance was placed by him in the case of Panna Lal v. Balwant and others (A I R 1925 Lah. 431). This decision is of no avail to the learned Advocate for it merely says that a compromise decree can be set aside on the ground of fraud and it does not say that such a decree cannot be set aside on any other ground. The next decision relied on by the learned Advocate for the appellant is the case of Allahbux Pindok and others v. Nusserwanji & Co. and others (A I R 1953 Sind 99). In that case it was held that right to institute a separate suit to set aside a decree passed by consent was limited; and it exists only in cases where the decree incorporates an agreement which was void. This case lends support to the view taken by the learned District Judge. If it is found that the terms of compromise are void by reason of section 23 of the Act, a separate suit will be main tainable. This decision further lays down that the suit will still be maintainable if such a contract is invalid on any other ground. In that case it was observed:‑ "A judgment given or order made by consent may in a fresh action brought for the purpose be set aside on any ground which would invalidate an agreement, not contained in a judgment or order, such as that the consent is the result of a mistake or that it was ultra vires on the part of one of the consenting parties." This observation clearly goes against the contention of the learned Advocate for the appellant. Mr. Syed Mohsin Ali learned Advocate appearing as amicus curiae submits that it is the duty of the Court to see that a compromise made by the parties is lawful and he invites our attention to rule 3 of Order XXII of the Code of Civil Procedure which reads as follows:‑ "Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise, or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the suit." The word `lawful' in the said Rule clearly indicates that the agreement which may form part of the decree must be lawful and if it is contrary to law, a Court cannot pass a decree in accordance with such an agreement. This view finds support in the decision of Patna High Court in the case of Smt. Sabitri Thakurain v. Mrs. F. A. Savi and others (A I R 1933 Pat. 306). Mr. Syed Mohsin Ali has also placed before us a Full Bench decision of the Lahore High Court consisting of Harries, C. J. Din, Mohammad and Abdur Rahman, JJ., reported in A I R 1943 Lah.

268. In that case Abdur Rahman, J., delivering the judgment of the Court observed:‑ "It seems to be clear that where a decree is passed in consequence of a compromise and is a mere record of the will of the parties it cannot be regarded to have acquired any greater sanctity than the compromise itself on the ground that it was adopted by the Judge or that the command of the Judge had been added to it. The Judge was not called upon to consider the validity or legality of the compromise and in the absence of any determination of these questions the decree in such cases is liable to the same attack and uffers from the same infirmities which the compromise was open or subject to." This observation, therefore, clearly indicates that a point which may be raised against the compromise may also be raised against) the decree passed in terms of a compromise. This shows that if a decrcee passed in terms of a compromise is void, it can' also be similarly attacked on that ground in a subsequent suit. In the case before us the learned District Judge has held that the compromise effected by the parties is hit by section 23 of the Contract Act on the ground that it affects the minor son who was not a party to the compromise. The terms of the compromise relating to the minor son have been set out by the learned Judge at page 26 of the Paper Book and they are as follows:‑ "The plaintiff admits that the son that is born to her is not of the defendant. Her son is not entitled to any monthly maintenance from the defendant. Her son is not entitled to get and will not get any dues of any nature from the defendant." The learned Judge's comment on this compromise are as follows: "On the plain meaning of those terms, the boy stands to be a bastard child and is not entitled to get and will not get any monthly maintenance or any dues of any nature from the defendant. So it needs no further discussion to say that those terms do involve or they imply injury to the status and property of minor boy. This being the position, the consideration or object of the solenama, Exh. 2, is undoubtedly void." The above observation of the learned Judge is in accord with the provision of section 23 of the Contract Act which reads as follows:‑ "

23. The consideration or object of an agreement is lawful, unless‑it is forbidden by law; or is of such nature that, if permitted, it would defeat the provisions of any law; or is fraudulent; or involves or implies injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy. In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void." It will be seen that plaintiff Firoza Begum admitted in the petition of compromise that she was not a legally married wife of the defendant. The unavoidable consequence of this admission in the compromise petition which forms part of the decree is that the son will be reduced to the status of an illegiti mate son. It clearly involved injury to his status and right D to maintenance and also future inheritance. That being so, the terms of the contract would come within the ambit of section 23, for they involve or imply injury to the person and property of the minor boy. Such an agreement is unlawful and it is clearly laid down that every agreement of which the object is unlawful is void. We are, therefore, of opinion that the learned Judge has rightly held that this agreement is void. The view taken by the learned Judge and approved by us finds support in a decision of the Calcutta High Court in the case of Joylish Chandra Dutta Gupta v. Prayag Krishna Dutta Gupta (61 C L J 88). In that case Nasim Ali, J. considered the provision of Rule 3 of Order XXIII of the Code of Civil Procedure and section 23 of the Contract Act and observed:‑ "The contracts which are vitiated by fraud or undue influence are voidable and are binding on the parties till they are avoided but contracts which are void are no contracts at all and they are not binding on the parties and are not required to be avoided or set aside." Mr. Syed Mohsin Ali relied on this passage to submit that since an agreement in this case is void and not binding, a party is entitled to ask for a declaration to that effect. In that case the learned Judge further observed:‑ "One of the objects of the agreement therefore was to deal with the minor's interest in the said property. There cannot be any doubt therefore that the compromise purported to govern the rights of the minors. Consequently the compromise is bit by section 23 of the Indian Contract Act and is therefore void." In this case before us the compromise affects the right of the minor as clearly indicated above and the agreement is there fore void. With regard to the contention of the learned Advocate for the appellant that the plaintiff cannot maintain the suit unless she has refunded the money obtained in pursuance of the compromise is also not of substance. This argument is founded on section 65 of the Contract Act which reads as follows:‑ "When an agreement is discovered to be void, or when a contract becomes void, any person who has received any advantage under such agreement or contract is bound to restore it, or to make compensation for it, to the person from whom he received it." The following observation of the Bench of this Court consisting of Amin Ahmed, A. C. J. and Rahman, J., in the case of Messrs P. K. Basak 8c Co. Ltd. v. Messrs Gossen & Co. Ltd. (9 D L R 1) is a complete answer to the point raised by the learned Advocate for the appellant: "We must point out that section 65 of the Contract Ac E does not apply to contracts void under the provision of sections 23 and 24 of the said Act for the latter are void ab initio and cannot be said to have become void or to have been discovered to be void." We are in respectful agreement with the earlier decision of a Division Bench of this Court. For the reason stated above, the appeal is dismissed; and the judgment and decree of the Court of Appeal below are affirmed. As none appears for the respondents we make no order as to costs. A. H. KHAN, J.‑I agree. A. E./S. A. H. Appeal dismissed.'