IMPORTANT POINT
Consent decree is binding on parties and fresh suit would not be maintainable to give effect thereto even if party’s right to possess under the consent decree was not found to be enforceable by Revenue Authorities.

Headnote:(i) Civil Procedure Code, 1908 - Section 47 - Suit for permanent injunction filed by respondent No.1 where in appellant and respondent No.3 were defendants was decreed in terms of settlement - Parties were co-sharers - Pursuant to said consent decree, respondents moved Revenue Authorities for mutation of their names which was denied on ground that by consent decree, right, title and interest of respondent had not been declared - Second suit filed by respondent for declaration - Whether suit was not maintainable in view of provisions of Section 47 CPC? (Yes).
       Held : Respondents had filed a suit. It may be a suit for injunction, but therein, the parties resolved their disputes and differences. A compromise petition was filed. A decree was passed in terms thereof. The parties were bound thereby. A consent decree in terms of Order 23, Rule 1 of the Code of Civil Procedure need not be confined only to the reliefs prayed for. It may not be confined to the subject matter of the suit. Although, the consent decree was passed in a suit for injunction, for all intent and purport it was a preliminary decree passed in a suit for partition. A fresh proceeding could not be initiated for giving effect thereto, even if Respondents’ contention that their right to possess under the consent decree were not found to be enforceable by the Revenue Authorities was to be accepted. A consent decree, it is trite, remains valid unless it is set aside. It would be binding on the parties. Although, the principles of res judicata strico sensu would not apply, the principles of estoppel would. In the plaint it was accepted that a compromise decree was passed. The High Court while passing its judgment in the second appeal also noticed the same. Thus, in the subsequent suit, the effect of the consent decree could not have been ignored.(Para 13)
       Respondents could not, thus, disclaim the said consent decree by filing a suit for declaration. We may, however, hasten to add that the same would not mean that their right in relation to the other land, as for example, abadi land could be denied. We may record that in fact it was accepted at the bar that they are entitled thereto.(Para 15)
       Submission of the learned counsel for Respondents is that the suit for declaration had to be filed in view of refusal on the part of the Revenue Authorities to mutate their names may not be correct as keeping in view the provisions contained in Section 47 of the Code of Civil Procedure, a subsequent suit was clearly barred. The consent decree was also binding on the Revenue Authorities. Respondents also could initiate a proceeding for preparation of final decree. They could also have filed an appropriate application for measurement of the land and delivery of possession pursuant thereto. But, by no stretch of imagination, a second suit could be held to be maintainable.(Para 16)
       The High Court, thus, failed to take into consideration that there existed an error apparent on the face of record. As the second suit filed by Respondent No. 1 was not maintainable, the question of directing Appellant to give one bigha of land, out of 7191.94 sq.mtrs., to Respondent No. 1 did not arise as the same would be inconsistent with the judgment and decree dated 22.4.1987 passed in Suit No. 113/1/1987 holding them to be the owner in possession of land measuring the area of 7191.94 sq.mtrs. It also erred in holding that in terms of the compromise arrived at by and between the parties, Respondent No. 1 was entitled to 1/3rd of the total property plus one bigha.(Para 18)
       For the reasons aforementioned, the appeal is allowed with liberty to Respondents to file an appropriate application, if they so desire, for measurement of lands in question and division of lands in terms of the said consent decree. We further declare that the consent decree shall be binding on the Revenue Authorities.(Para 19)
       (ii) Civil Procedure Code, 1908 - Order 23 Rule 1 - Consent decree - Need not be confined only to the reliefs prayed for and may not be confined to subject matter of suit. (Para 13)

JUDGMENT

S.B. Sinha, J. - Leave granted.

2. The parties are co-sharers. Respondent No.1 herein filed a suit against Bir Singh, Respondent No.3 as also Appellant herein for permanent injunction. Appellant is wife of Respondent No 2. A settlement was arrived at by and between the parties. The terms of the settlement were reduced to writing. It was filed before the Court and accepted. A decree was passed on the basis of the terms of the said settlement. It was recorded therein:

“...Now, the Panchayat has settled the disputes amongst the parties to the effect that the portion where there is abadi and which is in the possession of which party, has been given to the same party and that there is no objection to the second party in this regard nor shall be there any objection in the future also. Apart from it has been decided that the 1/3rd portion of the remaining lands shall go to Pyare Lal and 1/3rd portion shall go to Amrit Pal and Mohan Lal and Ved Prakash sons of Kewal, Grand sons of Bir Singh and the 1/3rd share shall go to Bir Singh son of Shri Asa Ram. It has been further decided that all the criminal and civil cases going on between the parties shall be withdrawn and they shall be bound by the same. Apart from the above, the Will executed earlier shall be treated as cancelled and a new Will shall be executed in the light of the above decision. All the three parties shall bear the expenses in equal shares. For which none of the parties shall have any objection. It has been further decided that out of the portion given to Bir Singh, one bigha of land shall be given to Pyare Lal and to which proposal all the parties have agreed. Apart from this none of the parties shall fight/ dispute with regard to the aforesaid properties in future...”

3. Pursuant to or in furtherance of the said consent decree, Respondents allegedly moved the Revenue Authorities for mutation of their names. The same was denied on the ground that by reason of the said consent decree the right, title and interest of Respondents had not been declared.

4. A second suit, therefore, was filed for declaration. A counter-claim was also filed by Appellant. The plaint was amended. In the plaint it was stated:

“That the Defendant No. 2 Tulsan, instituted suit against Bir Singh and Kewal Ram Defendants on 22.4.1987 about the land bearing Khasra Nos. 39, 57, 38, 45, 46, 47, 52, 53, 54, 55, 56 and 376 total area 7191.94 by leaving the land in dispute as was settled in between the parties in earlier suit as stated above. Although the suit filed by Tulsan against Bir Singh and Kewal Ram was collusive in nature yet the plaintiff has no cudgel with the land as stated above which she got in a collusive decree from Bir Singh and Kewal Ram, because the Defendants have already admitted the Plaintiff to be the owner in possession of the land in suit alongwith one bigha of land out of land fallen at that time to the share of Bir Singh Defendant as mentioned in its para of the plaint.”

5. The reliefs claimed in the said suit inter alia are as under:

“i)That the plaintiff may kindly be declared as owner in possession of the property mentioned in para No.1 of the plaint as well as mentioned in para No.6 of the plaint.

ii)That the defendants may kindly be restrained permanently from claiming any right, title and interest in the property in suit and from interference of any nature in the property in suit. The revenue record be also ordered to be recorrected and made up to date as per judgment and decree of this land by substituting the name of the plaintiff in column of ownership.

iii)That the Defendants be restrained from interfering in any manner in the passage existing on khasra No. 53. In case the Defendants succeeded in blocking the path at the end of khasra No. 57 and to the beginning of Khasra No. 53 during the pendency of the suit then in that event in the alternative the decree for mandatory injunction be passed by giving directions to the Defendants to remove the blockade of the path/p

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2006 Supreme(SC) 912

IMPORTANT POINTConsent decree is binding on parties and fresh suit would not be maintainable to give effect thereto even if party’s right to possess under the consent decree was not found to be enforceable by Revenue Authorities.

Cases Referred (2)

IMPORTANT POINT
Consent decree is binding on parties and fresh suit would not be maintainable to give effect thereto even if party’s right to possess under the consent decree was not found to be enforceable by Revenue Authorities.