Case Note & Summary
The petitioner, defendant No.1 in O.S.No.114/2017, filed a revision petition under Section 115 of the Code of Civil Procedure, 1908 (CPC) challenging the order dated 09.01.2019 passed by the Senior Civil Judge and JMFC, Laxmeshwar, which held that the suit filed by the plaintiffs (respondents 2 to 7) was maintainable. The plaintiffs had filed O.S.No.114/2017 for partition and separate possession of suit schedule properties, claiming that they were co-sharers along with defendant No.1. The defendant No.1 contended that the suit was barred by res judicata in view of an earlier compromise decree in O.S.No.72/2014, which was also a partition suit between the same parties. The trial court framed issue No.3 and an additional issue regarding maintainability and held that the suit was maintainable. The High Court, after hearing the parties, noted that the earlier compromise decree in O.S.No.72/2014 was not acted upon and the parties continued in joint possession of the properties. The court observed that a compromise decree which is not given effect to does not create a bar of res judicata for a fresh suit for partition. The court further held that the trial court had correctly appreciated the facts and law, and there was no error of jurisdiction warranting interference under Section 115 CPC. Accordingly, the revision petition was dismissed.
Headnote
A) Civil Procedure Code - Maintainability of Suit - Res Judicata - Compromise Decree - The court considered whether a subsequent suit for partition is barred by res judicata due to an earlier compromise decree in a previous suit. The court held that a compromise decree which was not acted upon and where the parties continued in joint possession does not operate as res judicata and the subsequent suit is maintainable. (Paras 1-10)
B) Partition - Compromise Decree - Joint Possession - The court examined the effect of a compromise decree in a partition suit that was not given effect to. It held that if the parties continued in joint possession and the decree was not acted upon, the cause of action for a fresh suit for partition arises and the suit is maintainable. (Paras 5-10)
Issue of Consideration
Whether the suit for partition filed by the plaintiffs is maintainable in view of the earlier compromise decree in O.S.No.72/2014?
Final Decision
The revision petition is dismissed. The order dated 09.01.2019 passed by the Senior Civil Judge and JMFC, Laxmeshwar in O.S.No.114/2017 is confirmed.
Law Points
- Maintainability of suit
- Res judicata
- Compromise decree
- Partition suit
- Section 115 CPC
- Order 23 Rule 3 CPC
Case Details
2019 LawText (KAR) (06) 4
Sri Hanumanthareddy Sahukar (for petitioner), Sri Mallikarjunswamy B. Hiremath, Sri Umesh P. Kakkarki (for C/R-1), Sri Deepak C. Maganur (for R2-7)
Sri. Yallappa S/o Shivappa Helakkanavar
Smt. Avvakka @ Akkamma, Smt. Sharavva, Smt. Shivaleela, Smt. Satyavva, Smt. Savitravva, Sri. Udachappa, Sri. Gundappa
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Nature of Litigation
Revision petition under Section 115 CPC against order holding suit maintainable.
Remedy Sought
Petitioner (defendant No.1) sought to set aside the trial court's order that the suit for partition is maintainable.
Filing Reason
Petitioner contended that the suit was barred by res judicata due to an earlier compromise decree in O.S.No.72/2014.
Previous Decisions
Trial court in O.S.No.114/2017 held that the suit is maintainable, rejecting the defendant's objection.
Issues
Whether the suit for partition is maintainable in view of the earlier compromise decree in O.S.No.72/2014?
Submissions/Arguments
Petitioner argued that the suit is barred by res judicata as the earlier suit O.S.No.72/2014 was decreed in terms of compromise and the same cause of action cannot be re-agitated.
Respondents argued that the compromise decree was not acted upon and the parties continued in joint possession, hence the suit is maintainable.
Ratio Decidendi
A compromise decree in a partition suit which is not acted upon and where the parties continue in joint possession does not operate as res judicata and does not bar a fresh suit for partition. The trial court's order holding the suit maintainable was correct and no interference under Section 115 CPC is warranted.
Judgment Excerpts
The defendant No.1 being aggrieved by the order dated 9.01.2019 passed on issue Nos.3 and additional issue in O.S.No.114/2017 by the Senior Civil Judge and JMFC at Laxmeshwar has filed this revision petition.
The brief facts of the case are as follows:- Plaintiffs Respondent Nos.2 to 7 filed O.S.No.72/2014 ... for partition and separate possession of the suit schedule land ... The said suit came to be decreed in view of the compromise between the parties.
Procedural History
Plaintiffs (respondents 2-7) filed O.S.No.72/2014 for partition, which was decreed by compromise. Subsequently, plaintiffs filed O.S.No.114/2017 for partition of the same properties. Defendant No.1 filed an application raising issue of maintainability. Trial court framed issues and held the suit maintainable. Defendant No.1 filed revision petition under Section 115 CPC before the High Court.
Acts & Sections
- Code of Civil Procedure, 1908: Section 115
