COMMISSIONER ENDOWMENTS DEPARTMENT Vs. VITTAL RAO

JUDGEMENT

(1.) Section 96(3) has been engrafted on to the Code of Civil Procedure in order to avoid repetition of adjudicatory process between the parties in the event of there being a decree passed by consent of the parties. It is on this perspective, the observations of the Supreme Court in the case of K.C. Dora v. Annamanaidu. AIR 1974 SC 1069 seem to be very apposite. In paragraph 59 of the report, the Supreme Court observed: "Be that as it may, the bar to an appeal against a consent decree, in sub-section (3) of Section 96 of the Code is based on the broad principle of estoppel. It presupposes that the parties to an action can, expressly or by implication, waive or forego their right of appeal by any lawful agreement or compromise, or even by conduct. Therefore, as soon as the parties made the agreement to abide by the determination in the appeal (AS.668) and induced the Court to pass a decree in terms of that agreement, the principle of estoppel underlying Section 96(3) became operative and the decree to the extent it was in terms of that agreement, became final and binding between the parties. And, it was ineffective in creating an estoppel between the parties as a judgment on contest. Thus, the determination in A.S 668 - that Kadakalla \vas not an 'estate' became as much binding on the respondents, as on the parties in that appeal."It is in this perspective, Mr. Shanthi Bhushan, appearing for the first respondent, raised two several preliminary objections at the commencement of hearing of the appeal. On the first count, Mr. Shanthi Bhushan contended that the appeal is barred by reason of the factum of the consent as is apparent on the lace of the judgment and an appeal in terms of Section 96(3) CPC is not maintainable and on the second count, in any event, the appeal is barred by reason of the doctrine of 'res judicata' or 'constructive res judicata' in terms of Section 11 of the Code of Civil Procedure.

(2.) At this juncture, however, it would be convenient to advert to the contextual facts. The records depict that in W.P.No.8970 of 1990 the learned single Judge of this Court passed an order recording the following: "During the pendency of the writ petition, the respondents filed WPMP No. 15438 of 1995 seeking permission to appoint an Executive Officer to manage the affairs of the temple in question and also to permit the said Officer to conduct the yearly festival pending disposal of the WP. The writ petitioner filed a counter-affidavit in the said WPMP stating that he is ready to accept the terms and conditions mentioned in the Government Memo No.1295, dated 27-10-1989. Now, Counsel for both parties have represented that the WP may be disposed of recording the said compromise as per Govt. Memo No. 1295, dated 27-10-1989. Accordingly this WP is disposed of in terms of the compromise embodied in Govt. Memo No.1295 dated 27-10-1989 and directing both parties to implement the terms embodied in the said Govt. Memo within a period of four weeks from today. WP is disposed of accordingly. No costs." (emphasis supplied)It would also be convenient to note the full text of Memorandum being No.1295 dated 27-10-1989. The Memorandum reads as follows:

(3.) Apart from the two factual elements mentioned above, the records depict that after the disposal of the writ petition by the learned single Judge as above, some third parties moved this Court in appeal against the order of the learned single Judge and the same, however, was dismissed on contest. Incidentally be it noted that there was no appeal preferred by the State Government. But after the dismissal of the appeal, the State Government thought it prudent to file a review petition and the same, as records depict, was also dismissed by a Bench judgment of this Court. Thereafter, a contempt case was filed and thereafter proceeding was initiated under the Contempt of Courts Act and the same was concluded by direction to implement the judgment of the Division Bench in W.A.No.1536 of 1995 within two months. A Special Leave Petition thereafter, as appears, was filed by the Endowments Department of the Government against the orders of the Division Bench in review application but the same was also dismissed on 5th January, 1998. It is this order which has featured or brought into prominence by both Mr. Shanthi Bhushan appearing for the respondent as also by Mr. Advocate-General, appearing in support of the appeal and as such the same needs to be considered with some detail. For convenience sake, the order of the Supreme Court is set out hereinbelow: "The learned senior Counsel for the petitioner after some arguments seeks leave to withdraw this special leave petition with a view to filing appropriate proceedings for challenging the consent order in a writ petition which according to him, was nullity as being fraudulent and contrary to law. The SLP stands dismissed as withdrawn.''It is after the dismissal of the special leave petition that this application was preferred with an inordinate delay of 739 days. Be that as it may, the records depict that this delay was condoned and the matter was taken up for hearing. And, at the commencement of hearing of the matter, Mr. Shanthi Bhushan, appearing for the respondent raised the above noted two preliminary objections. By reason of the submissions of Mr. Advocate-General in support of the appeal, reference to a brief factual backdrop cannot be avoided and the same is thus recorded.