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Uphras Lapasam and anr. Vs. Ka Esiboll Lyngdoh and ors. - Court Judgment

LegalCrystal Citation
Subject;Civil
CourtGuwahati High Court
Decided On
Case NumberMisc. Appeal (Second) No. 3(SH) of 1983
Judge
ActsCode of Civil Procedure (CPC) , 1908 - Sections 11 - Order 23, Rule 3
AppellantUphras Lapasam and anr.
RespondentKa Esiboll Lyngdoh and ors.
Appellant AdvocateB. Lamare and I. Lamare, Advs.
Respondent AdvocateD.E. Shallam, Adv.
DispositionAppeal allowed
Prior history
R.K. Manisana Singh, J.
1. This appeal arises from the judgment and decree passed by the learned District Council Court, Jowai in Misc. Title Civil Appeal No. 1 of 1982 confirming the judgment and decree passed by the Subordinate District Council Court passed in Title 13 of 1980.
2. The appellant instituted Title Suit No. 13 of 1980 against the respondents claiming, inter alias, a decree for declaration of right and title of the plaintiff to the disputed forest, in the Court of the Subordin
Excerpt:
- .....from the judgment and decree passed by the learned district council court, jowai in misc. title civil appeal no. 1 of 1982 confirming the judgment and decree passed by the subordinate district council court passed in title 13 of 1980. 2. the appellant instituted title suit no. 13 of 1980 against the respondents claiming, inter alias, a decree for declaration of right and title of the plaintiff to the disputed forest, in the court of the subordinate district council court (trial court). the learned trial court disposed of a preliminary issue relating to res judicata. the learned trial court held that the suit was barred by the principles of res judicata as a result of the decision of the s. d. o., jowai in civil appeal no. 16 of 1951 and dismissed the suit. the appeal from the judgment.....
Judgment:

R.K. Manisana Singh, J.

1. This appeal arises from the judgment and decree passed by the learned District Council Court, Jowai in Misc. Title Civil Appeal No. 1 of 1982 confirming the judgment and decree passed by the Subordinate District Council Court passed in Title 13 of 1980.

2. The appellant instituted Title Suit No. 13 of 1980 against the respondents claiming, inter alias, a decree for declaration of right and title of the plaintiff to the disputed forest, in the Court of the Subordinate District Council Court (Trial Court). The learned Trial Court disposed of a preliminary issue relating to res judicata. The learned Trial Court held that the Suit was barred by the principles of res judicata as a result of the decision of the S. D. O., Jowai in Civil Appeal No. 16 of 1951 and dismissed the suit. The appeal from the judgment and decree of the Trial Court to the District Council Court, Jowai was dismissed by the District Council Court in Misc. T. C. Appeal No. 1 of 1982. Therefore, the appellant filed MA(S) 3(SH) of 1983 in this Court.

3. Mr. B. Lamare, learned counsel for the appellant submits that the order in Civil Appeal No. 16 of 1951 is a compromise order or decree and as such, it cannot operate as res judicata. A short question which arises for consideration is if a compromise decree or order will operate as res judicata. In Pulavarthi Vankata Subba Rao v. Valluri Jagannadha Rao, AIR 1967 SC 591, the Supreme Court held :

'The compromise decree was not a decision by the Court. It was acceptance by the Court of something to which the parties hadaagreed. It has been said that a compromise decree merely sets the sea! 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 Section 11 of the C. P. C., or constructive as a matter of public policy, on Which the entire doctrine rests.'

In Baldevdas v. Filmistan Distributors, AIR 1970 SC 406, the Supreme Court further held:

'A consent decree (according?) to the decisions of this Court, does not operate as .res judicata, because a consent decree is merely the record of a contract between the parties to a suit, to which is superadded the seal of the Court A matter in contest in a suit may operate as res judicata only if there is an adjudication by the Court; the terms of Section 11 of the. Code leave no scope for a contrary view. Again it was for the Trial Court in the first instance to decide that question and thereafter the High Court could if the matter were brought before it by way of appeal or in exercise of its revisional jurisdiction, have decided that question.'

4. The above two decisions of the Supreme Court show that a consent decrees or order does not operate as res judicata because a consent decree is merely the record of a contract between the parties in a suit and that the Court does not decide anything.

5. In the background of the above principles, let me examine the case in hand. The order of the S. D. O. passed on 2-2-54 in Civil Appeal No. 16 of 1951 runs :

'Seen petition and document filed by the respondent stating that the forest in dispute shall remain with the appellant. The appeal is accordingly struck off. Petition and document will form part of the record.'

The petition mentioned in the order of the S. D. O. relates to the compromise of the dispute in the appeal. Therefore, the order of the S. D. O. is a compromise decree or order. In view of the aforesaid decisions of the Supreme Court, the order or decree of the S. D. O. cannot operate as res judicata. As such, the suit is not barred by the principles of res judicata. The documents, namely, the order of the S. D. O. and the petition mentioned in the order may be used for other purposes in accordance with the law, and not for the purpose of res judicata. The other submissions of Mr. B. Lamare relating to the jurisdiction of the S. D. O. to pass order or decree in Civil Appeal No. 16 of 1951 and identities of the disputed forest and the parties cannot be decided at this stage. The aforesaid submissions cannot be decided without evidence. The parties have not produced their evidence. In this view of the matter, the submissions of Mr. B. Lamare are left open.

6. For the foregoing reasons the appeal is allowed. The judgments and the decrees passed by the Courts below are set aside. There will be no order as to costs.


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