A consent decree does not operate as res judicata under Section 11 of the Civil Procedure Code.

JUDGMENT :

MANOJ KUMAR GUPTA, J.

1. The instant petition is directed against the order dated 24.8.2017 whereby the trial court decided issue Nos.3 and 6 in Original Suit No.657 of 2012. Issue No.3 was whether the suit is barred by principles of res judicata. Issue No.6 was whether the suit is liable to be dismissed on the ground of mis-joinder of parties. Both the issues have been decided against the defendant-petitioners. The petitioners being aggrieved by the decision of the trial court on issue No.3 filed Revision No.71 of 2017. It has been dismissed by impugned order dated 22.7.2019. Hence the instant petition.

2. The defendant-petitioners contested the suit interalia on the ground that the suit instituted by the plaintiff-respondent is barred by principles of res judicata in as much as the previous suit bearing No.273 of 1990 instituted by petitioner No.1 against the plaintiff and two others was decided in terms of a compromise dated 6.9.1990. The contention of the petitioners was that the subject matter of the instant suit is the same and since the earlier suit already stands decided in terms of compromise, therefore, the subsequent suit is barred by Section 11 CPC.

3. The trial court rejected the contention raised in this regard by holding that the petitioners have failed to file the certified copy of the judgment of the previous suit; the parties in the two suits are different and that there is nothing on record to indicate that the instant suit is barred by principles of res judicata. The revisional court, placing reliance on judgments of the Supreme Court in Subba Rao vs Valluri Jagannadha, (1967) AIR SC 591, Sundara Bai vs. Devaji, (1954) AIR SC 82 and Baldevdas vs Filmisthan Distrubuters, (1970) AIR SC 406 held that the principles of res judicata do not apply to a consent decree. A consent decree is not a decision by the court and therefore, Section 11 is not attracted.

4. Learned counsel for the petitioners submitted that the view taken by the courts below is manifestly illegal. It is urged that the consent decree would also bar a fresh suit. In support of his submission, he has placed reliance on the judgments of the Supreme Court in Sunderabai vs. Devaji Shankar Deshpande, (1954) AIR SC 82, Sailendra Narayan Bhanja Deo vs. State of Orissa, (1956) AIR SC 346 and Shankar Sitaram Sontakke and another vs. Balkrishna Sitaram Sontakke and others, (1954) AIR SC 352.

5. In Sunderabai (supra), the Supreme Court has held that a consent decree acts as estoppel by conduct as distinguished from an estoppel by record which constitutes the bar of res-judicata. While making said observation, the Supreme Court specifically considered the provisions of Section 11 CPC and held that although the said section would not apply in terms, the principles of estoppel contained in Section 115 of the Evidence Act would preclude the parties from re-agitating the matter. The relevant observations made by the Supreme Court in the said judgment on the above aspect are extracted below :-

"12. The bar of 'res judicata' however, may not in terms be applicable in the present case, as the decree passed in Suit No. 291 of 1937 was a decree in terms of the compromise. The terms of section 11 of the Civil Procedure Code would not be strictly applicable to the same but the underlying principle of estoppel would still apply. Vide: the commentary of Sir Dinshaw Mulla on section 11 of the Civil Procedure Code at page 84 of the 11th Edition under the caption 'Consent decree and estoppel':

"The present section does not apply in terms to consent decrees; for it cannot be said in the cases of such decrees that the matters in issue between the parties 'have been heard & finally decided' within the meaning of this section. A consent decree, however, has to all intents and purposes the same effect as 'res judicata' as a decree passed 'in invitum'. It raises an estoppel as much as a decree passed 'in invitum."

13. The contention which was very strenuously urged before us b