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Kailash Chandra and ors. Vs. Kulamani Chakra - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 495 of 1951
Judge
Reported inAIR1956Ori210; 21(1955)CLT199
ActsCode of Civil Procedure (CPC) , 1908 - Sections 11; Evidence Act, 1872 - Sections 115
AppellantKailash Chandra and ors.
RespondentKulamani Chakra
Appellant AdvocateG.G. Das, Adv.
Respondent AdvocateP.C. Chatterji, Adv.
DispositionAppeal dismissed
Cases Referred(D) and Raja of Venkatagiri v. Madras Province
Excerpt:
.....india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - 3. it is now well-settled by a series of decisions (both english and indian) that though a compromise decree may not operate as res judicata under section 11. civil p. hence, the compromise decree would completely bind the parties to the suit and the persons claiming through themand the defendants would be clearly estopped from raising this question. but they failed completely to establish the fraud as alleged by them......himself against the said jogi chakra for a declaration that he was the validly adopted son of jogi. the suit ended in a compromise wherein jogi unambiguously admitted that the plaintiff was his adopted son and a decree was also passed on the basis of the compromise. the defendants claimed title to the disputed property through jogi chakra and consequently ordinarily they would be bound by that the said compromise decree. 3. it is now well-settled by a series of decisions (both english and indian) that though a compromise decree may not operate as res judicata under section 11. civil p. c. it would operate as estoppel by judgment which will be as effective between the parties as a judgment passed on contest. this principle has been laid down with great emphasis in in re south.....
Judgment:

Narasimham, J.

1. This is defendants' second appeal against the concurrent decisions of the two lower Courts decreeing the plaintiff's suit for a declaration that he is the validly adopted son of one Jogi Chakra and as such entitled to Inherit all his properties. The defendants are the agnates of the said Jogi Chakra and they challenged the alleged adoption of the plaintiff by Jogi Chakra.

2. Hence, the main question for decision by both the Courts was whether the plaintiff was validly adopted by Jogi Chakra. The lower appellate Court after full discussion of the oral evidence held that the evidence was somewhat unsatisfactory and if the case had rested entirely on oral evidence, his conclusion would have been against the case of adoption. But he thought that the defendants were estopped from raising this question in view of compromise decree passed by a competent Court in O. S. No. 67 of 1946.

That suit was brought by the plaintiff himself against the said Jogi Chakra for a declaration that he was the validly adopted son of Jogi. The suit ended in a compromise wherein Jogi unambiguously admitted that the plaintiff was his adopted son and a decree was also passed on the basis of the compromise. The defendants claimed title to the disputed property through Jogi Chakra and consequently ordinarily they would be bound by that the said compromise decree.

3. It is now well-settled by a series of decisions (both English and Indian) that though a compromise decree may not operate as res judicata under Section 11. Civil P. C. It would operate as estoppel by judgment which will be as effective between the parties as a Judgment passed on contest. This principle has been laid down with great emphasis in in re South American and Mexican Co.; Ex. parte Bank of England, 1895-1 Ch 37 at p. 50 (A) in the following words of Lord Herschell: --

'..... a Judgment by consent is intended to-put a stop to litigation between the parties just as much as is a Judgment which results Irom the. decision of the Court after the matter has been fought out to the end. And I think it would be very mischievous if one were not to give a fair and reasonable interpretation to such judgments, and were to allow questions that were really involved in the action to be fought over again in ft subsequent action.'

In a later decision reported in Hoystead v. Commr. of Taxation, 1926 AC 155 (B), it was further pointed out that where a decision by a competent Court has been reached on the basis of an admission by a party, that party would be estopped from questioning it in a new legal proceeding in respect of matters which were fundamental to the decision.

In a later Privy Council decision reported in C.H. Kinch v. E.K. Walcott, AIR 1929 PC 289--(C), it was pointed out that there was, in essence, no distinction between a decision on contest operating as res judicata and a decision by consent operating as estoppel except as regards the method of setting it aside. A compromise decree may be set aside in a proper proceeding on the ground of fraud or other considerations; but so long as it is not set aside it is as effective as a decision on merits.

4. These principles have been followed in innumerable Indian decisions and I need refer only to Ramrao v. Dattadayal, AIR 1948 Nag 364 (D) and Raja of Venkatagiri v. Madras Province, AIR. 1947 Mad 5, (2) (E).

5. So far as the present case is concerned, the admission by Jogi that the respondent was his validly adopted son was fundamental to the decision in the previous suit inasmuch as that suit was itself brought for a declaration that the plaintiff was the adopted son of Jogi. Hence, the compromise decree would completely bind the parties to the suit and the persons claiming through themand the defendants would be clearly estopped from raising this question.

6. Mr. Das on behalf of the appellants urged that in view of the finding of the lower appellate Court to the effect that the actual giving and taking, which is essential to prove adoption, was not satisfactorily established, the rule of estoppel would not suffice to prove the plaintiff's case. I am however unable to appreciate this argument. In the present litigation the entire evidence on record including the oral evidence of the witnesses on the question of giving and taking and the effect to be given to the compromise decree in the previous litigation between the plaintiff and Jogi have to be carefully weighed and legal inferences drawn from them.

It may be that the oral evidence of giving and taking in the present suit is inadequate. But the compromise decree containing an unambiguous admission of the fact of adoption would bind the defendants and preclude them from raising the question about the adoption not having taken place.

7. It is true that a compromise decree stands practically on the same footing as an agreement and it is open to a party to show that the agreement is not binding on the ground of fraud misrepresentation, undue influence etc. The appellants therefore alleged that a fraud had been practised on Jogi when he was induced to sign the compromise petition.

But they failed completely to establish the fraud as alleged by them. Only one witness appears to have been examined to prove fraud and he has been disbelieved by both the Courts of Fact. Hence, I must hold that the compromise decree still subsists and is binding on the appellants.

8. The appeal fails and is dismissed withcosts.


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