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Consent decree-Legal effect thereof-Compromise not vitiated by fraud, misrepresentation, misunderstanding or mistake-Decree passed thereon- Whether operates as res judicata- Civil Procedure Code-(Act V of 1908)–Order II, rule 2(3) -Relinquishment Of claim in a prior suit- Subsequent suit barred in respect of the claim so omitted. = It is well settled that a consent decree is as binding upon the parties thereto as a decree passed by invitum. Where a compromise is found, not to be vitiated by fraud, Misrepresentation, 100 misunderstanding or mistake, the decree passed thereon has the binding force of res judicata. Where the plaintiff confines his claim to account for a period up to a certain date only, he relinquishes his claim implicitly if not explicitly to the account for the subsequent period because Order II, rule 2 (3) of the Code of Civil Procedure lays down that if a person omits, except with the leave of the Court, to he sue for all reliefs to which he is entitled, he shall not afterwards sue for any reliefs so omitted.

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PETITIONER:
SHANKAR SITARAM SONTAKKE AND ANOTHER

 Vs.

RESPONDENT:
BALKRISHNA SITARAM SONTAKKE AND OTHERS.

DATE OF JUDGMENT:
12/04/1954

BENCH:
HASAN, GHULAM
BENCH:
HASAN, GHULAM
MAHAJAN, MEHAR CHAND (CJ)
BOSE, VIVIAN

CITATION:
 1954 AIR 352 1955 SCR 99
 CITATOR INFO :
 C 1991 SC2234 (41)

ACT:
 Consent decree-Legal effect thereof-Compromise not
vitiated by fraud, misrepresentation, misunderstanding or
mistake-Decree passed thereon- Whether operates as res
judicata- Civil Procedure Code-(Act V of 1908)--Order II,
rule 2(3) -Relinquishment Of claim in a prior suit-
Subsequent suit barred in respect of the claim so omitted.

HEADNOTE:
 It is well settled that a consent decree is as binding
upon the parties thereto as a decree passed by invitum.
Where a compromise is found, not to be vitiated by fraud,
Misrepresentation,
100
misunderstanding or mistake, the decree passed thereon has
the binding force of res judicata.
Where the plaintiff confines his claim to account for a
period up to a certain date only, he relinquishes his claim
implicitly if not explicitly to the account for the
subsequent period because Order II, rule 2 (3) of the Code
of Civil Procedure lays down that if a person omits, except
with the leave of the Court, to he sue for all reliefs to
which he is entitled, he shall not afterwards sue for any
reliefs so omitted.JUDGMENT:
 CIVIL APPELLATE JURISDICTION: Civil Appeal No. 113 of
1953.
 Appeal from the Judgment and Decree, dated the 25th day
of March, 1952, of the High Court of Judicature at Bombay
(Bavdekar and Dixit JJ.) in Appeal No. 554 of 1951, from
Original Decree arising out of the Judgment and Decree,
dated the 30th day of June, 1951, of the Court of the Joint
Civil Judge, Senior Division of Thana, in Special Suit No.
12 of 1949.
K. S. Krishnaswamy lyengar, (J. B. Dadachanji, V.B. Rege
and Ganpat Rai, with him) for the appellants.
S. B. Jathar, R. B. Kotwal and Naunit Lal for respondent
No. 1.
1954. April 12. The Judgment of the Court was delivered by
GHULAM HASAN J.-This appeal is brought by leave of the High
Court of Bombay against the judgment and decree of a
Division Bench of that Court (Bavdekar and Dixit JJ.) dated
March 25, 1952, modifying the judgment and decree of the
Civil Judge, Senior Division of Thana, dated June 30, 1951.
The appeal arises out of a partition between 6 brothers of a
joint Hindu family. The joint family carried on joint
family business of a grocery shop, liquor shops, a ration
shop, a motor-bus service and also moneylending under the
name of "Sontakke Brothers". The family also Possessed
immovable and movable property. Balkrishna Sitaram Sontakke
is the eldest of the brothers and is the plaintiff
respondent in the present appeal. He will be referred to
hereafter as the plain-tiff.
It is common ground that up to 1944 the brothers were living
and messing together and the income from
101
the family business used to be kept with the plaintiff.
From April 14, 1945, the situation changed and the parties
began to appropriate the proceeds of the various businesses
carried on by them separately to themselves. The plaintiff
was running the liquor shops, defendants Nos. I and 2 who
are the appellants, were carrying on the motor-bus service
business while defendant No. 4 was running the grocery shop.
The parties tried to have partition effected between them
through arbitrators but the attempt failed. On June 29,
1945, all the five brothers filed a suit for partition
against the plaintiff of all joint family properties
including the accounts of all the businesses. The suit was
numbered 39 of 1945. It was compromised on March 7, 1946.
By this compromise it was declared that prior to 1942 all
the accounts of the various businesses had been correctly
maintained and shown, that the parties had agreed to have
arbitrators appointed through Court for examining the
accounts from 1942 up to March 31, 1946, and for determining
the amount due up to that date. Each of the brothers was to
get one -sixth share in the cash balance as found on March
31, 1946, upon examination of accounts by the arbitrators.
All the movable property of the joint family including the
stock-in-trade of all the family businesses was to be
divided equally among all the brothers. The compromise
further declared that the plaintiff was to have one-sixth
share in the motor garage and that defendants 1 and 2 were
to pay the price of one-sixth share to him. These are the
material provisions of the compromise. One of the brothers
was a minor and the Court finding the compromise to be for
the benefit of the minor accepted it and passed a pre-
liminary decree in terms of the compromise on July 25, 1947.
If nothing else had happened to disturb the natural course
of events, the proceedings would have ended in a final
decree for partition. The plaintiff, however, commenced a
fresh suit on February 23, 1949, confining his relief to his
share of the profits and assets Of the motor business
carried on by defendants Nos. 1 and 2 after March 31,1946.
His case was that the compromise was made in a hurry, that
the parties omitted to provide in the compromise about the
future conduct
102
of the motor business from April 1, 1946, that the motor
business was still a joint family business and that he had a
right to ask for accounts of that business subsequent to
March 31, 1946.
In defence it was pleaded that the compromise was made after
due deliberation, that accounts of the motor 'business and
grocery shop should actually have been taken up to April 14,
1945, the date of disruption of the joint family status, but
the parties agreed by way of compromise that account of all
family businesses should be taken up to March 31, 1946. It
was also pleaded that the claim was barred by res judicata.
Upon the issues framed in the case the Civil Judge found
that the suit was not. barred by reason of the decision in
the previous suit No. 39 of 1945, that the decision in that
suit was not obtained by fraud and misrepresentation and
that the compromise in the previous suit was not due to a
mistake or misunderstanding. Despite these findings the
Civil Judge held that although the motor business carried on
after the partition had ceased to be a joint family business
yet as it was carried on by some members of a family their
position was analogous to that of a partner carrying on
partnership after dissolution and applying the principle
underlying section 37 of the Partnership Act he held that
the two brothers carrying on the motor business were liable
to account. Accordingly he passed a preliminary decree
directing the accounts of the motor business to be taken
from March 31, 1946, up to the date on which a final decree
for payment of the amount found to be due would be made. A
Commissioner was appointed to take the accounts to ascertain
the profits earned by the use of the capital belonging to
the shares of brothers other than those who carried on the
motor business. In appeal Bavdekar 'J. with whom Dixit J.
agreed modified the decree of the trial Court by directing
that the accounts were to be taken up to the date when the
businesses discontinued and not up to the date of the final
decree.
The learned Judges held that the cause of action for the
present suit was different from the cause. of action in the
previous suit and that the suit was not barred
103
by res judicata or by Order II, rule 2, of the Code of Civil
Procedure. After delivering themselves of some conflicting
observations to which reference will in detail be made
hereafter they held that the consent decree did not
expressly negative the right for accounts of the motor
transport business. Finally the learned Judges recorded the
conclusion that regardless of the pleadings in the case the
defendants Nos. I and 2 had made use of the joint family
property and that they stood in, the position of co-owners
and as contemplated in section 90 of the Indian Trusts Act
were liable to render accounts for the-profits which were
attributable to the employment of the assets owned by the
parties jointly.
Learned counsel for the appellants has contested the view of
the High Court upon all the points decided, ,against them.
He has contended that the cause of action in a suit for
partition is the desire and intention of the family to
separate, that the cause of action in the two suits is
identically the same and not separate and distinct and. that
the suit was, therefore, barred both by the principle of res
judicata and by Order II, rule 2, of the Civil Procedure
Code. Learned counsel also challenged the view of the High
Court about the applicability of section 90 of the Indian
Trusts Act
It seems to us that upon a fair reading of the compromise
arrived at between the parties in the circumstances then
existing, the only legitimate conclusion possible is that
the parties had agreed to confine the taking of all accounts
upto March 31,1946, and had closed the door to reopening
them beyond that date. If the compromise was arrived at
after full consideration by the parties and was not vitiated
by fraud, misrepresentation, mistake or misunderstanding as
held by the trial Court-a finding which was not interfered
with by the High Court-it follows that a matter once
concluded between the parties who were dealing with each
other at arms length cannot now be reopened. What led the
parties to confine the period of account to March 31, 1946,
and stop further accounting which would have normally
extended to the passing of the final decree will appear from
the following circumstances. The plaintiff knew that the
licence for the liquor shops
104
carried on by him was expiring on the 1st April, 1946, and
he was anxious to run the liquor business exclusively and
not jointly or in partnership with his brothers after the
expiry of the licence. He gave a notice to his brothers
through pleader on December 12, 1945, stating inter alia the
following :-
"The period of (licence for) the liquor shops at the said
places expires by end of March, 1946. Hence after the
expiry of the said period, my client having no desire to
conduct liquor shop business jointly or in partnership with
any of you again, he intends to run and will run as from the
date 1st April, 1946, one or more liquor shops as he pleases
belonging to him alone independently. The moneys that will
be required for (purchase in) auction of the shops will be
paid by my client by borrowing the same from third parties
on his own responsibility and my client will not allow the
said moneys to have the least connection with the
businesses, properties and cash which are at present in
dispute in Court and with the profits and income from the
said businesses or properties. My client expressly informs
-you by this notice of the fact, viz., that the liquor shops
thus purchased by him will solely belong to him and will be
run by him independently of any of you. None of you will
have any legal right to meddle with or interfere in the
liquor shops which will be thus purchased by my client in
the Government auction for the new year beginning from 1st
April, 1946, and if any of you make an attempt with
malicious intention to cause even the slightest interference
in the said business of my client, then my client will hold
you fully responsible for any harm suffered by him and for
other damages and expenses incurred by him and will take a
severe legal action against you therefor."
This notice furnishes a true guide as to the intention of
the plaintiff which was none other than that he should run
the liquor shops exclusively for himself and appropriate the
profits thereof without making himself accountable to his
brothers. Although the plaintiff says that he intended to
pay for the auction of liquor shops by borrowing he was
really in a position of vantage for he admittedly had Rs.
13,000 cash in hand as
105
against the Rs. 3,000 his brothers had. The notice explains
the significance of the provision in the compromise that
accounts are to be taken only up to March 31, 1946. Since
the plaintiff did not want his brothers to interfere with
his exclusive running of the liquor business after March 31,
1946, he perforce had to agree that he should sever his
connection with other businesses run by his brothers. This
arrangement was apparently acceptable to all the brothers as
being fair and reasonable and as not giving undue advantage
to any party over the other. This being our construction of
the compromise, it follows that the plaintiff's conduct in
going back upon that arrangement by filing a fresh suit in
regard to the motor business only is anything but honest.
The plaint filed in the previous suit leaves no manner of
doubt that the plaintiffs in that suit ,sought a complete
division of all the family property both movable and
immovable and a final determination of all the accounts in
respect of the family businesses. It is also significant
that after the compromise the plaintiff (Balkrishna) filed
an application before the Civil Judge in which he alleged
that when he agreed in the compromise that the accounts of
the various businesses should be up to the 31st March, 1946,
he was under a misapprehension regarding his legal right
inasmuch as he thought that when the accounts were to be
taken up to a certain date, 'the joint family property after
that date would not be allowed to be utilized by some
members only of the family for making profits for themselves
to the exclusion of the plaintiff. He goes on to say that
he laboured under the impression that the joint family
business would be either altogether stopped after the 31st
March, 1946, or would be run either by the arbitrators or
the Commissioners and the profits accruing therefrom would
be deposited in Court for distribution among the parties
according to their shares. The application was made on
November 22, 1947. His pleader, however, stated on April 6,
1948: " The application is abandoned by the applicant as he
wishes to pursue his remedy by way of an independent suit
for the grievance in the application," and the Court passed
the order, "The application is disposed of as
14
106
it is not pressed." The learned Judges of the High Court in
referring to this application observe thus: " It is obvious
therefrom that really speaking the idea of the profits of
several businesses after the 1st of April, 1946, was present
to the minds of the parties; but the parties did not care to
ask that accounts of the other businesses will be taken up
after the 1st of April, 1946. One of the businesses was a
liquor business, which admittedly was to come to an end on
the 31st of March, 1946; but there was also another
business; that Was a kirana shop, which was not a very big
business. But all the same it was there, and there is
force, therefore, in the contention which has been advanced
on behalf of the appellants that it was not as if there has
been an oversight on the part of the parties, but the
parties knew that the businesses might go on afterwards; but
if they were carried on, they did not particularly care for
providing by the compromise decree for accounts of those
businesses being taken after the 1st of April, 1946." Having
said all this they record the conclusion that the compromise
did not expressly negative the right of the plaintiff to an
account of motor business. We are unable to accept this
conclusion. The observations quoted above negative the
plaintiff's case about mistake or misunderstanding in regard
to the true effect of the compromise and show that the
plaintiff abandoned the right to Account after the crucial
date and the status of the parties thereafter changed into
one of tenants in common. If the plaintiff really intended
that accounts of the motor business or indeed of all other
businesses were to be taken up to the date of the 'final
decree, there was no point in mentioning the 31st March,
1946. The normal course, after the preliminary decree was
passed by the Court, was to divide all the property by metes
and bounds and to award monies as found on examination of
the accounts right up to the date of the final decree. But
for the compromise which limited the period of the account
the plaintiff would have obtained the relief he is now
seeking, in the partition suit as accounts would have been
taken of all the businesses up to the date of the final
decree. The plaintiff has himself to thank for preventing
the natural
107
course of events and for forbidding the accounts to be taken
after the 31st March, 1946. The plaintiff on the other hand
has no real grievance in the matter, for although the
defendants Nos. 1 and 2, who continued to run the motor
business, may have made some money with the- help of the two
old motor buses, the plaintiff whose keenness to run the
liquor business is apparent from the notice referred to
above was not precluded from reaping the fruits of that
business. It is hard to conceive that the plaintiff would
have agreed to share his burden of the loss if the motor
business had sustained any. We hold, therefore, that the
compromise closed once for all the controversy about taking
any account of the joint family businesses including the
motor business after the 31st March', 1946, and the
plaintiff is bound by the terms of the compromise and the
consent decree following upon it.
The obvious effect of this finding is that the plaintiff is
barred by the principle of res judicata from reaitating the
question in the present suit. It is well settled that a
consent decree is as binding upon the parties thereto as a
decree passed by invitum. The compromise having been found
not to be vitiated by fraud, misrepresentation,
misunderstanding or mistake, the decree passed thereon has
the binding force of res judicata.
We are also of opinion that the plaintiff's claim is barred
by the provisions of Order II, rule 2(3), of the Code of
Civil Procedure. The plaintiff by confining his claim to
account up to March 3, 1946, only, implicitly of not
explicitly, relinquished his claim to the account for the
subsequent period. Sub-rule 3 clearly lays down that if a
person Omits, except with the leave of the Court, to sue for
all reliefs to which he is entitled, he shall not afterwards
sue for any relief so omitted. We do not agree with the
High Court that the cause of action in the subsequent suit
was different from the cause of action in the first suit.
The cause of action in the first suit was the desire of the
plaintiff to separate from his brothers and to divide the
joint family property. That suit embraced the entire
property without any reservation and was compromised, the
plaintiff having abandoned his claim to account in respect
of
108
the motor business subsequent to March 31, 1946. His
subsequent suit to enforce a part of the claim is founded on
the same cause of action which he deliberately relinquished.
We are clear, therefore, that the cause of action in the two
suits being the same, the suit is barred under Order II,
rule 2(3), of the Civil Procedure Code.
As the. suit is barred both by res judicata and Order II,
rule 2(3), of the Civil Procedure Code, no further question
as to the applicability of section 90 of the Indian Trusts
Act can possibly arise under the circumstances.
The result is that we allow the appeal and dismiss the suit
with costs throughout.
 Appeal allowed.

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