HARISH TANDON - (1.) IN spite of service none appears on behalf of the opposite parties. This revisional application is directed against an order no. 38 dated 29.9. 2004 passed by the learned Civil Judge (Junior Division), Lalbagh, Murshidabad in Title Suit no. 218 of 2009 by which an application for amendment of the plaint is rejected.
(2.) THE petitioner instituted a suit for declaration of title to the property in question and a permanent injunction. THE case made out in the plaint is that the father of the petitioner was the owner to the extent of 2/3rd share and the other 1/3rd share was owned by his sister in respect of various properties including the property described in the schedule to the plaint. During his lifetime the father separated his share by amicable partition from his sister and thus became the exclusive owner of the properties allotted to his share. On 23.4.1962 the father sold his property to his two daughters namely the petitioner and one Mursheda Khatun, since deceased. However the said property was reconveyed by the petitioner in favour of her father on 1.11.1962. THE father and the said Mursheda Khatun thereafter executed a registered hebanama on 28.9.1968 and transferred their shares in favour of the petitioner. THE opposite party no. 1, 2 and 7 took a specific defence in the written statement that prior to the institution of the instant suit the petitioner filed Title Suit no. 163 of 1970 against her father and the opposite party no. 1 and 2 which ended into a compromise by passing a compromise decree whereby she stated that she has no right, title and interest in the said property. By way of amendment, the petitioner sought to incorporate the fact that there is a typographical and/or mutual mistake in the said solenama and prayed for relief in the form of declaration that the said solenama be rectified. Initially the said amendment was rejected by the trial court on 29.2.1996 but the said order was set aside by the revisional court. The revisional court directed the said application to be heard afresh. By the impugned order the trial court again dismissed the said application. Mr. Hiranmoy Bhattacharya, learned Senior Advocate appearing for the petitioner submits that the compromise decree is nothing but a document / instrument and there is no impediment on the part of the court to allow the petitioner to amend his pleading by incorporating the relief under section 26 of the Specific Relief Act. Having considered the respective submission of Mr. Bhattacharya the point which emerges for consideration is whether the compromise decree is an instrument capable of being rectified under section 26 of the Specific Relief Act or a decree under the Code of Civil Procedure. The apex court in case of Pulavarthi Venkata Subba Rao and Ors. V. Valluri Jagannadha Rao and Ors. reported in AIR 1967 SC 591 (supra) held that the compromise decree is not a decision by the court but sets the seal of the court on the averments of the parties in following words : The compromise decree was not a decision by the Court. It was the acceptance by the Court of something to which the parties had agreed. It has been said that a compromise decree merely sets the seal of the court on the agreement of the parties. The court did not decide anything. Nor can it be said that a decision of the court was implicit in it. Only a decision by the court could be res judicata, whether statutory under S. 11 of the Code of Civil Procedure, or constructive as a matter of public policy on which the entire doctrine rests. The respondents claim to raise the issue over again because of the new rights conferred by the Amending Act, which rights include, according to them, the re-opening of all decrees which had not become final or which had not been fully executed. The respondents are entitled to take advantage of the amendment of the law unless the law it itself barred them, or the earlier decision stood in their way. The earlier decision cannot strictly be regarded as on a matter which was "heard and finally decided." The decree might have created an estoppel by conduct between the parties; but here, the appellants are in an unfortunate position, because they did not plead this estoppel at any time. They only claimed that the principle of res judicata governed the case or that there was an estoppel by judgment. By that expression, the principle of res judicata is described in English law. There is some evidence to show that the respondents had paid two sums under the consent decree, but that evidence cannot be looked into in the absence of a plea of estoppel by conduct which needed to be raised and tried. The appellants are, however, protected in respect of these payments by the proviso to Cl. (iii) of S. 16 of the Amending Act.
(3.) THE same view is reiterated in a later judgment in case of Baldevdas Shivlal and Anr. V. Filmistan Distributors (India) Pvt. Ltd. and Ors. reported in AIR 1970 SC 406. Although in case of Subba Rao (supra), the three-judge Bench of the apex court held that the comprise decree is not a decision of the court but the court merely sets the seal of it on the basis of the averment made by the parties but failed to take notes of a five-judge Bench of the apex court in case of Sailendra Narayan Bhanja Deo V. THE State of Orissa reported in AIR 1956 SC 346. It is settled law that in case of a conflicting decision, the decision delivered by a Bench having larger Coram has a binding effect. THE Division Bench of the apex court in case of Subba Rao (supra) did not consider the case of the five-judge Bench delivered by the apex court in case of Sailendra Narayan Bhanja Deo (supra) and thus cannot have any binding effect. Subsequently the view of the larger bench was accepted and relied upon by the apex court in case of Byram Pestonji Gariwala Vs. Union Bank of India and Ors. reported in (1992) 1 SCC 31 in following manner : 41. In the present case, the notice issued under Order XXI Rule 22 was personally served on the defendant, but he did not appear or show cause why the decree should not be executed. The notice was accordingly made absolute by order dated January 23, 1990 and leave was granted to the plaintiff to execute the decree. The decree passed by the High Court on June 18, 1984 in terms of the compromise was a valid decree and it constituted res judicata. As stated by this Court in Shankar Sitaram Sontakke v. Balkrishna Sitaram Sontakke (AIR 1954 SC 352 at p. 355) : ... It is well settled that a consent decree is as binding upon the parties thereto as a decree passed by invitum. The compromise having been found not to be vitiated by fraud, misrepresentation, misunderstanding or mistake, the decree passed thereon has the binding force of res judicata. 42. S.R. Das, C.J., in Sailendra Narayan Bhanja Deo v. State of Orissa (AIR 1956 SC 346 at p. 351) states: ... a judgment by consent or default is as effective an estoppel between the parties as a judgment whereby the court exercises its mind on a contested case .... 43. A judgment by consent is intended to stop litigation between the parties just as much as a judgment resulting from a decision of the court at the end of a long drawn out fight. A compromise decree creates an estoppel by judgment. As stated by Spencer-Bower and Turner in Res Judicata, (2nd edn., page 37): Any judgment or order which in other respects answers to the description of a res judicata is nonetheless so because it was made in pursuance of the consent and agreement of the parties .... Accordingly, judgments, orders, and awards by consent have always been held no less efficacious as estoppels than other judgments, orders, or decisions, though doubts have been occasionally expressed whether, strictly, the foundation of the estoppel in such cases is not representation by conduct, rather than res judicata. See also Mohanlal Goenka v. Benoy Kishna Mukherjee (AIR 1953 SC 65). 44. The consent decree made on June 18, 1984 remained unchallenged. None questioned it. The appellant never raised any doubt as to its validity or genuineness. He had no case that the decree was vitiated by fraud or misrepresentation or his counsel lacked authority to enter into a compromise on his behalf. Nevertheless, after six years he questioned its validity by means of chamber summons. This was an unsuccessful challenge by reason of delay, estoppel or res judicata, and was rightly so held by the High Court. ;