JUDGMENT Janardan Sahai, J.
1. On the application of the State Bank of India, the appellants, these two second appeals were dismissed as withdrawn by order dated 25.5.201. Applications have been filed by the appellant Bank in both the appeals to recall the aforesaid order dismissing the appeals as withdrawn and these applications are being disposed of by the present order.
2. The facts giving rise to the present application may be briefly stated. The State Bank of India hereafter referred to as the 'Bank' had filed a suit No. 25 of 1977 against the firm M/s. Jamuna Prasad Munni Lal, a proprietorship concern of which Jamuna Prasad Jaiswal was the sole proprietor. The suit was decreed for recovery of Rs. 3,82,827.70 P with interest @ 18% per annum from the date of the suit till the date of payment. The defendant filed appeal, which was registered as Civil Appeal 8 of 1999 in the Court of District Judge, Deoria.
3. During the pendency of the aforesaid litigation Jamuna Prasad Jaiswal died leaving behind three sons who according to the Bank's case were partners of a new firm Jamuna Prasad Jaiswal and Sons. According to the Bank's case these partners sold certain assets of the proprietorship concern M/s. Jamuna Prasad Munni Lal Jaiswal hypothecated to the Bank and as such the amount of Rs. one lakh payable to the new firm by the purchasers under a Bank draft which represented the sale proceeds of the hypothecated assets was withheld by the State Bank of India, Deoria. The new firm Jamuna Prasad Jaiswal and Sons then filed original suit No. 49 of 1980 for recovery of Rs. one lakh principal and Rs. 45,000/- interest against the Bank alleging that the payment was wrongfully withheld. The Trial Court decreed the suit for recovery of the principal sum of Rs. one lakh but dismissed the claim for interest. The Bank challenged the decree of recovery of Rs. one lakh against it by appeal registered as appeal No. 42 of 1998, The new firm the first respondent in this appeal filed appeal No. 56 of 1998 against the refusal of interest. By judgment and decree dated 5.2.1999 the lower appellate Court dismissed the Bank's appeal but allowed the appeal of the new firm and decree the suit for recovery of Rs. 1,43,500/- for the principal and interest. The operative portion of the judgment provides that simple interest @ 12% per annum with pendente lite and future interest would be payable and the Bank was directed to make the payment within one month, failing which, the new firm the plaintiff would thereafter be entitled to compound interest at the rate charged by the Bank on its loans. The aforesaid two second appeals have been preferred by the Bank against the decree of the lower appellate Court.
4. An application was filed by the appellant Bank for withdrawal of the aforesaid second appeals giving rise to the order dated 25.5.2001 in each of the appeal dismissing them as withdrawn, it appears that after the orders dismissing the appeals as withdrawn was passed the respondent firm applied for execution of the decree on 29.5.2001 for recovery of a sum of Rs. 45,81,124,05 P. The present applications by the Bank for recall of the order dismissing the appeals as withdrawn were then filed. In these applications it is stated that a settlement had been made between the Bank and the respondent firm and that the Bank had received the payment. The applications are supported by affidavit of Rajiv Ranjan, Deputy Manager of Deoria Branch of the Bank. The affidavit of V.S. Dixit, Field Officer in the Bank was also filed. The substance of the averments made in these affidavits is that it was settled between Vijay Shankar Jaiswal one of the sons of Jamuna Prasad Jaiswal, the proprietor of Jamuna Prasad Munni Lal who (Vijay Shanker Jaiswal) was also a partner of the new firm and V.S. Dixit, Field Officer that if the appellant Bank settled the accounts in respect of the decree of the Bank against the judgment-debtor M/s. Jamuna Prasad Munni Lal under the decree-holder new firm will not execute the decree dated 6.1.1998 of the Trial Court and dated 5.2.1999 of the lower appellate Court and the Bank would pay only the draft amount of Rs. 1 lakh to the respondent No. 1. According to the Bank the respondent firm the decree-holder played fraud upon the Bank and after the Bank's appeals were dismissed as withdrawn in view of the settlement, the respondent firm applied for execution of the decree claiming a sum of Rs. 45,81,124.05P.
5. An objection was taken by the respondent firm regarding maintainability of the application for withdrawal. It is submitted by Mr. Ravi Kiran Jain, learned Senior Counsel for respondent No. 1 assisted by Mr. A.K. Singh, Advocate that the application for recall of the order is not maintainable even if the facts alleged by the Bank are taken to be correct. The act of withdrawal is an unilateral act and once an application to withdraw the suit or appeal is filed the withdrawal is complete and no application for withdrawal of the application is maintainable. It was also submitted that no fraud was practised at all and in any case there was no fraud upon the Court and at best it was a fraud on the party and application for withdrawal of the application for withdrawing the appeal is not maintainable.
6. Mr. S.N. Verma, learned Senior Counsel appearing for the Bank submitted that fraud vitiates all acts and that the Bank having been induced by fraud played by the firm, respondent in these appeals to move the application for withdrawal the order dismissing the appeal as withdrawn was liable to be set aside.
7. Order 23 Rule 1, CPC provides for withdrawal of the suit. It is quoted below:
" 1. Withdrawal of the suit or abandonment of part of claim--(1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim:
Provided that where the plaintiff is a minor or other person to whom the provisions contained in Rules 1 to 14 of Order XXXII extended, neither the suit nor any part of the claim shall be abandoned without the leave of the Court.
(2) An application for leave under the proviso to Sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit the major or such other person.
(3) Where the Court is satisfied-
(a) that suit must fail by reason of some formal defect, or
(b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, It may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty institute a fresh suit, in respect of the subject-matter of such suit, or such part of the claim.
(4) Where the plaintiff-
(a) abandons any suit or part of claim under Sub-rule (1) or
(b) withdraws from a suit or part of the claim without the permission referred to in Sub-rule (3) he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim.
(5) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to abandon a suit or part of a claim under Sub-rule (1), or to withdraw, under Sub-rule (3) any suit or part of a claim, without the consent of the other plaintiffs."
8. A distinction has been made in this rule between an unconditional withdrawal, which is an abandonment under Sub-rule (1) on the one hand and the withdrawal with the permission of the Court to institute a fresh suit under Sub-rule (3) on the other hand. The consequences of the two kinds of withdrawal are different. In case of an abandonment the plaintiff abandoning the suit is precluded from instituting a fresh suit while in the case of withdrawal with liberty to file a fresh suit the plaintiff is not so precluded. In the present case the application was a simplicitor application for withdrawing the appeal without any permission to file a fresh appeal. It has been held by a Division Bench of this Court in Smt. Raisa Sultana Begum and Ors. v. Abdul Qadir and Ors., AIR 1966 All 318, that right to withdraw has been conferred by Order 13 Rule 1(1), C.P.C. but there is no provision conferring the right to revoke the withdrawal. Once the plaintiff desires to withdraw the suit and makes an application for withdrawal, the act of withdrawal is complete even if no orders on that application are passed by the Court on that date. A distinction was, however, drawn between a withdrawal in fact but not in law. If a suit is withdrawn in fact as well as in law no application to revoke the withdrawal is maintainable. Where, however, a party alleges that there was indeed no withdrawal in law as the withdrawal was induced by fraud the dictum that no revocation of an application to withdraw is maintainable would not be applicable.
9. A Division Bench of the Calcutta High Court in Rameswar Sarkar v. State of West Bengal and Ors., AIR 186 Calcutta 19, considered the decision of this Court in Smt. Raisa Sultana Begum's case and interpreted it to mean that it was not an inflexible rule that an application under Section 151 of the Code of Civil Procedure for withdrawal of the application for withdrawal of the suit is not maintainable at all and if the plaintiff cars make out a sufficient cause, in that case, the Court can allow withdrawal of the application for withdrawal, of the suit in exercise of its inherent power. In the Calcutta case the plaintiff alleged that he did not realise the seriousness of the prejudice that would be suffered by him if the suit was withdrawn without liberty to file a fresh suit. The Court noticed that the plaintiff had paid maximum Court fee of Rs. 10,000/- and through mistake the plaintiff had withdrawn the suit, the Court would not be powerless to set aside the order of dismissal of the suit and to allow the withdrawal of the application for withdrawal of the suit in exercise of its inherent power. The Court proceeded to caution that the power was exercisable only if there were some justifiable reasons for allowing withdrawal of the application for withdrawal of the suit. From these decisions it is clear that an application to withdraw an application for dismissing the suit or appeal is maintainable if fraud is played upon the plaintiff or upon the appellant as the case may be. Learned Counsel for respondent relied upon a Division Bench decision in Ram Lal Shahu v. Dina Nath, AIR (29) 1942 Allahabad 253 in which it was held that appeal dismissed as withdrawn cannot be restored even if the appellant acted under mistake of law. The decision does not make reference to any provision of the statute. In that case the appellant had got the appeal dismissed as withdrawn for the reason alleged by him that he was advised to file a fresh suit which he did and after having pursued the suit and the appeal and then upto the High Court and having lost the suit had filed the application to restore the appeal which he had earlier got dismissed as withdrawn. The reason of the decision stated by the learned Judges is that if such appeal was restored there would never be a certainty in litigation. It was a decision on its own facts. The case is distinguishable as after the withdrawal of the appeal, the suit was filed and pursued and was lost. Also it was not alleged in that case that withdrawal was induced by fraud.
10. Before considering the other cases relied upon by the respondents I shall consider the decision in Upendra Kumar v. District Judge, 1997 Alld Civil Journal 823, cited by them. This Court considered its previous decision in Smt. Raisa Sultana Begum as well as the decision of the Calcutta High Court in Rameshwar Sarkar and it was held that withdrawal was an unilateral act and once a suit was withdrawn the withdrawal could not be revoked. In this case the application of the plaintiff for dismissing the suit without judgment contained a recital that the claim had been settled between the parties and the plaintiff did not want to proceed with the suit and there was no necessity of the suit and in such circumstances it was necessary to dismiss the unnecessary suit without any judgment. The Court considered the distinction between 'non-prosecution' of the suit on the one hand and 'abandonment' on the other and it was held that the two terms are not synonymous. Where a case is settled between the parties the pursuit of the claim is complete and it is not abandonment of the claim rather it is an achievement of the claim and such an application as was made in that case could more appropriately be described as an application for dismissing the suit for non-prosecution. On the other hand an application for abandonment is a unilateral action of the plaintiffs. In Upendra Kumar's case this Court confirmed the decision of the Trial Court which had allowed the application for setting aside the withdrawal on the ground that the payment in terms of the settlement was according to the plaintiffs case not made by the defendant. The decision in Upendra Kumar's case does not help the respondent. No doubt in that case the application was singed by both the parties whereas in the present case the application for withdrawal was filed by the Banks alone but the ground for withdrawal stated in the Bank's application itself is the settlement between the parties which was also the ground stated for the withdrawal in Upendra Kumar's case and it was held that such an application was not really an abandonment but an application to dismiss the suit for non-prosecution. Grounds for withdrawing such an application are, therefore not limited to the grounds for withdrawing an application for withdrawal of a suit laid down in Raisa Begum's case wherein the only Exception to the dictum that an application for withdrawal of an application to withdraw the suit was a case where the application though made in fact was not made in law.
11. The Counsel for the respondent referred to certain decisions in the context of application to set aside a compromise decree. Before considering the particular cases cited by Counsel for respondent it is necessary to bear in mind the distinction between an application for setting aside a compromise decree which is not a unilateral decision and one for withdrawal of an application for dismissing the suit as withdrawn which is a unilateral act. A compromise decree has been held to he a contract between the parties with the seal of the Court super-added. A compromise decree can be challenged on the same ground as a contract. Fraud which would vitiate a contract has been defined under Section 17 of the Indian Contract Act which reads as follows :-
"17. 'Fraud' defined--'Fraud' means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent with intent to deceive another party thereto or his agent, or to induce him to enter into the contract-
(1) the suggestion, as a fact, of that which is not true, by one who does not believe it to be true;
(2) the active concealment of a fact by one having knowledge or belief of the fact;
(3) a promise made without any intention of performing it;
(4) any other act fitted to deceive;
(5) any such act or omission as the law specially declares to be fraudulent.
Explanation--Mere silence as to facts likely to effect the willingness of a person to enter into a contract is not fraud, unless the circumstances of the case are such that, regard being had to them, it is the duty of the person keeping silence to speak, or unless his silence is, in itself, equivalent to speech."
12. It is to be noted that even under this definition of fraud a promise made by a party without any intention of performing it, or any other act fitted to deceive are acts covered under this definition of fraud. If, therefore, the Bank's case that a settlement was entered into in which it was agreed that the respondent would not execute the decree in its favour but would rest content with the sum of Rs. 1 lakh the principal amount of the Bank draft--a promise which the respondent never intended to keep, is accepted the act of the respondent in processing to execute the decree for Rs. 45 lakhs and odd would be a 'fraud'. The definition of fraud under Section 17 of the Contract Act is, however, far narrower than the concept of fraud in equity. In AIR 1914 Sindh 28, Schehnomal Jealdas v. Manager, Encumbered Estates this distinction has been taken note of and it has been held as follows:
"Mr. Wadhumal has argued that a decree can be set aside only on the ground of fraud, as defined in Section 17, Contract Act. This argument was raised in a previous case that came before this Court for disposal (first Appeal No. 39 of 1906) and was disposed of by the judgment in the following terms--Mr. Dipchand has ingeniously endeavoured to presuaded the Court that in dealing with his case we must hold that the decree can be set aside only on the ground of fraud, within the very narrow meaning of the word given to 'fraud' by the definition in Section 17, Contract Act. But we are not dealing with a common law case of contract; we are called on to exercise our equitable jurisdiction and apply the equitable principles which have by force of Regulation 4 of 1927 been made part of the law of this country. The ruling case on the point is the Duchess of Kingston's case, in which it was held that the effect of a judgment may be avoided by proving the same to have been obtained by fraud or collusion. As fraud is infinite in its varieties, the Courts have always refused to define it (Snell, P. 519); nor is the word defined for the purposes of the Evidence Act; See Amir Ali and Woodnoffe, Notes to Section 41. But a reference to any standard texts book on equity will make it obvious that "fraud" has a wide meaning, far wider than the definition in the Contract Act. It is necessary to investigate into the full meaning of the word for the purposes of the case, for we have it declared by Lord Cairns that a decree can be set aside if there be 'fraud' such that there is in the person chargeable with it the malus animous putting itself in motion and acting in order to take an undue advantage of some other person for the purpose of actually and knowingly defrauding him;" Patch v. Ward cited in Mahomed Golab v. Mahomed Sulliman."
Fraud as defined in the Contract Act means actual fraud. But in equity the Courts have also developed the doctrine of 'constructive fraud.' The following extract from Snell's Principles of Equity, Chapter 6, Part II, pages 545 on the concept of 'constructive fraud' is being quoted: . .
"In equity, the term 'fraud' embraces not only actual fraud, in the sense just defined, but also certain other conduct which falls below the standards demanded by equity. Courts of equity did not even stop at 'moral fraud in the ordinary sense' but took account of any 'breach of the sort of obligation which is enforced by a Court that from the beginning regarded itself as a Court of conscience' (Nocton v. Lord Ashburton 1914 A.C. 932 at 954, per Viscount Haldane L.C.). the Courts have refused to define this extended, or constructive, fraud; for, in the words of Lord Hardwicke, 'Fraud' is infinite, and were a Court of equity once to lay down rules, how far they' would go, and no farther, in extending their relief against it, or to define strictly the species of evidence of it, the jurisdiction would be cramped, and perpetually eluded by new schemes which the fertility of men's invention would contrive."
While examining the question whether a fraud had been played upon the Bank in making the application for withdrawal it is fraud the Bank in making the application for withdrawal it is fraud in this wider sense of 'constructive fraud', which defines definition which has to be taken into account. If the result dismissing the Bank's application would be to close an unconscionable transaction in favour of the respondent wrested by it unscrupulously the Court would be slow in dismissing the application. While it can be contended that in the case of compromise decree, the narrower concept of fraud defined in Section 17 of the Contract Act be applied because it is after all a compromise which is in the nature of contract which is assailed the same cannot be said in respect of unilateral transaction of withdrawal. In the latter case the doctrine of 'constructive fraud' has to be applied.
13. The cases cited by learned Counsel for respondent on the point of setting aside a consent decree may now be examined.
14. In Nathu Lal v. Raghnbir and Ors., 1926 Alld 50, it was held that a compromise decree, cannot be reviewed on the ground that it was obtained by coercion or under influence as there is no discovery of any new material which may lead to the challenge to the correctness of the decision rather it is only a subsequent exercise of option to repudiate the decree on a ground existing and to the knowledge of the parties. In that case the defendant had admitted the plaintiffs claim in the circumstances that he was brought under arrest in execution of a money decree. The consent was thus obtained by undue influence and the ground, therefore, was not one relating to the discovery of any new material contemplated in Order 47 Rule 1, C.P.C. We are not dealing in the present case, with a review application. This case is distinguishable. In Girdharan Prasad Missir and Ors. v. Bholi Ram and Ors., AIR 1941 Patna 574, a compromise was entered into by the advocates of the parties against the specific instruction alleged to have been given to the Counsel. The Patna High Court held that on facts it was not satisfied about the merits of the case set up by the party pressing for the setting aside the compromise decree. There is, however, in that decision an observation that otherwise (if the Court were satisfied that the compromise was made against instruction) the Court could have been inclined to interfere, which suggests that the learned Judges did not intend to lay down an absolute rule that the compromise decree could not be set aside by the appellate Court itself. It is merely a rule of prudence. The reason given for not interfering in an application under Order 47 Rule 1, CPC for review was that alternative remedy of a suit was more appropriate. Reliance was placed upon the decision of the Calcutta High Court in J.C. Galstaum v. Pramatha Nath Roy, AIR 1929 Cal 470, for the observation that the matter was important enough to deserve a separate suit.
15. In Shabool Ameeth Ali and Anr. v. Dayaram Singh alias Jayaram Singh, AIR(31) 1944 570, it was held that a compromise decree owing to error of fact to some extent of the party applying for review was not a sufficient ground to allow review. In Kewal Krishati v. Shiv Kumar and Ors., AIR 1970 Punjab and Haryana 176, relied upon by the learned Counsel for respondent it was held that the application under Section 151, CPC to set aside a consent decree on the ground of coercion, was not maintainable not was an application in review and that the remedy of a suit was adequate remedy. The reason for the view expressed was that the issues involved for deciding the application for setting aside a consent decree on the ground of fraud or under influence were quite different from the issues involved in the suit and, therefore, deserve a separate trial and also that the English practice was that fresh action was necessary and that the relief for setting aside a consent decree on the ground of fraud was a well recognised form of relief in a suit.
16. The review of the authorities cited above would show that there is no absolute bar to maintaining an application for setting aside a consent decree on the ground of fraud by the Court which has passed the decree but only that the alternative remedy of a suit is to be preferred. It is merely a rule of prudence. In cases where the fraud is practised upon the Court it has been held that the application to set aside a compromise decree can be made under Section 151, CPC itself. Thus in such cases even though the issues involved for deciding the application for setting aside the compromise decree would be altogether different from the issues involved in the suit, the application under Section 151, CPC or for review is nevertheless maintainable before the Court which passed the decree. The principle that the remedy of a separate suit is the appropriate one where the compromise decree is assailed on the ground of fraud cannot be extended to the case of an application to withdraw an application for withdrawal of the suit or appeal as the case may be. By its very nature an application to withdraw an earlier application has to be moved in the same forum where the earlier application which is sought to be withdrawn was filed. The cases for setting aside a consent decree are not directly on the point and the view taken in those cases that the remedy is to file a separate suit would not be applicable to cases where an application for withdrawal or revoking an application for withdrawal of the suit is made.
17. The cases cited by the appellant may now be examined.
18. In Manohar Lal Chopra v. Raj Bahadur Rao Raja Seth Hira Lal, AIR 1962 Supreme Court 527, the scope of inherent powers of the Court has been considered. Extract from paragraph No. 23 of that decision is quoted as follows:
"23................
Those observations have no bearing on the question of the Court's exercising its inherent powers under Section 151 of the Code. The Section itself says that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the Court to make orders necessary for the ends of justice. In the face of such a clear statement, it is not possible to hold that the provisions of the Code control the inherent power by limiting it or otherwise affecting it. The inherent power has not been conferred upon the Court; it is a power inherent in the Court by virtue of its duty to do justice between the parties before it."
19. In a recent decision the Apex Court in United India Insurance Co. Ltd. v. Rajendra Singh and Ors., III (2000) SLT 1=II(2000) CLT25=AIR 2000 Supreme Court 1165, held that the Insurance Company could apply for setting aside the award of the Motor Accident Claims Tribunal on facts discovered subsequently that the award had been passed on a fake claim. Paragraph Nos. 3 and 17 of that decision are quoted below:
"3. 'Fraud and justice never dwell together' (Frans etjus nunquam cohabitant) is a pristine maxim which was never lost its temper over all these centuries. Lord Denning observed in a language without equivocation that 'no judgment of a Court, nor order of a Minister can be allowed to stand if it has been obtained by fraud, for, fraud unravels everything" (Lazarus Estate Ltd. Beasley, 1956(1) QB 702)."
"17. Therefore, we have no doubt that the remedy to move for recalling the order on the basis of the newly discovered facts amounting to fraud of high decree, cannot be foreclosed in such a situation. No Court or Tribunal can be regarded as powerless to recall its own order if it is convinced that the order was wangled through fraud or misrepresentation of such a dimension as would affect the very basis of the clam."
20. In view of the aforesaid discussion, the objection of the respondent that the application was not maintainable at all or in this Court cannot be sustained and it has to be seen whether the Bank has made out a sufficient ground for setting aside the order dismissing the appeal as withdrawn. In AIR 1931 Oudh 333, Pandit Prakash Narain v. Raja Birendra Bikram Singh, it was held that fraud could be inferred from circumstances.
21. Certain circumstances indeed lend weight to the case of the Bank to say the least that it was induced by certain promises of the respondent to move the application of withdrawal promises which it transpires, the respondents never intended to keep. A decree for Rs. 3,82,827.70 with interest @ 18% per annum from the date of the suit was passed in favour of the Bank on 21.2.1998. The Bank was entitled to interest @ 18% from the dateof institution of the suit which was filed in the year 1977 and this amount would have swelled up to a very impressive amount on the date of the withdrawal which according to the learned Counsel for the Bank works out to about Rs. 22 lakhs. It is difficult to believe that while the Bank would give up its huge claim in the money decree against the proprietorship firm Jamuna Prasad Munni Lal and would settle it for a sum of Rs. 1.54 lakhs only it would choose to withdraw the second appeals and pay the decretal amount in the suit filed by the respondent firm which according to respondent was a stupendous Rs. 45,81,124.05 claimed in the execution application. The respondents have submitted that the two suits were between different parties and that while the suit of the Bank was against the proprietary concern M/s. Jamuna Prasad Munni Lal of which the proprietor was Jamuna Prasad Jaiswal, the other suit was filed by respondent No. 1 firm M/s. Jamuna Prasad Jaiswal and Sons. The submission of the respondent is that the two firms being altogether different the terms of the compromise in the suit filed by the Bank had no relevance in the suit filed by the respondent firm against the Bank which was on a totally different cause of action. The distinction between the parties in the two suits is emphasised by reference to the fact that orders were passed rejecting the impleadment of the new firm in the suit filed by the Bank and by reference to orders refusing to stay the suit filed by the firm against the Bank on the grond that identity of the parties differed. The fact, however, cannot be lost sight of that three sons of Jamuna Prasad Jaiswal were partners in the new firm. The identity of the two firms in law might be different but after the death of Jamuna Prasad Jaiswal his interest in the proprietary concern developed upon his sons who were partners in the new firm. There was thus an identity of interest of the sons both in the assets of the proprietary concern as well as in the new firm and it cannot be said that the Bank would view the transaction in the two suits as wholly different. The contents of the application for withdrawal themselves indicate that there had been a settlement between the parties to which reference was made in the application for withdrawal. Although the terms of the settlement have not been indicated in the application but the case of the respondent that there was no such settlement in respect of the decree in the firm's suit can not be believed for reasons that follow. In any case it is clear from the recital in the application for withdrawal itself that the Bank believed that there was a settlement. That apart the operative part of the judgment of the lower appellate Court in the firm's suit gives an option to the Bank to pay a lower rate of interest on the decretal amount, if it were paid within one month. The fact that the Bank chose not to pay the decretal amount but took the risk of filing the appeal on payment of substantial Court fee indicates that the Bank was serious in the remedy of appeal which it has preferred and had taken the risk to pay a far more heavy rate of interest if the appeals were to be dismissed. The case of the Bank is that there was a settlement while the case of the firm respondent No. 1 is that there was no settlement in respect of the decree in the firm's suit. It is to be noted that the respondent had applied for the listing of the Bank's application and at no stage before the order dismissing the appeals as withdrawn was it alleged by them that the recital in the application about the settlement was incorrect. To prove the settlement, the Bank has filed affidavits of Rajiv Ranjan and V.S. Dixit. The settlements is said to have been made with Vijay Shanker Jaiswal, one of the sons of Late Jamuna Prasad Jaiswal, for and on behalf of respondent No. 1. No affidavit of Vijay Shanker Jaiswal has been filed denying the settlement. The fact then that in the withdrawal application itself there is reference to the settlement and the circumstances which have been referred to above also lend weight to the existence of settlement and in the absence of any affidavit of Vijay Shanker Jaiswal in denial. I am inclined to hold that the Bank was induced to make the application for withdrawal on account of an assurance given by the respondent firm that it would not execute the decree. The mere fact that the Bank did not tender the payment of Rs. 1 lakh to the respondent which according to the Bank's case was settled is not very material because soon after the order dismissing the appeals as withdrawn the respondent had gone back upon its assurance and had applied for execution. If the application of the Bank is dismissed, the respondent would get away with a very unconscionable transaction in its favour. The net effect of the whole deal is that while the Bank would barter away the claim of about Rs. 22 lakhs or some such heavy sum for Rs. 1.54 lakhs, the respondent would recover a sum which according them is about Rs. 45 lakhs merely on account of the Bank withholding the Bank Draft of Rs. 1 lakh which according to the Bank's case represented the sale proceeds of the assets of the proprietorship concern hypothecated to the Bank. In the circumstances, I would rather believe the Bank's version that a fraud had been practised upon it in moving the application for withdrawal. The fact that the respondent waited for orders on the application for withdrawal and applied for execution immediately after it was passed indicates that the respondent never intended to keep its promise not to apply for execution and a case of actual fraud under Section 17 of the Contract Act is made out. In any case even if actual fraud is hot proved a case of 'constructive fraud' is made out in view of the circumstances above narrated and the fact that the respondent would otherwise be wresting a wholly unfair deal. Thus there is sufficient ground for recall of the order dated 25.5.2001 dismissing the appeals as withdrawn. The applications are allowed. The orders dated 25.5.2001 dismissing the second appeal Nos. 893 of 1999 and 468 of 2003 as withdrawn are recalled and the aforesaid appeals are restored to their original number and position.