In Narasamma v. Venkataratnam 1965 A.A.P. 12, the High Court of Andhra Pradesh held that the opening words of Section 11 required that the issue as to resjudicata should be tried at the earlier stage of the suit and not at the end along with the rest of the issues. The question of resjudicata is a mixed question of law and fact and can be allowed to be raised at later stage if it does not involve a fresh investigation of facts. Where the defendants omit to plead and prove resjudicata, and the Court investigates and decides matters already concluded between the parties without knowing about such a decision, the decision is not void, for want of jurisdiction. Plea of resjudicata is one which might be, and ought to be, raised as a defence and established, in order to operate as a bar in the exercise of jurisdiction to try and dispose of the matter subsequently. Otherwise, later decision will prevail and the plea of resjudicata itself will be barred by constructive resjudicata and the later decision (though overlooking the bar of resjudicata alone), will prevail.
Jammu High Court in the case of Anil Khajuria vs Shri Avinash Chander 2005 (2) JKJ 501 Plea of resjudicata does not involve pure question of fact but it involves mixed question of fact and law, and consequently the factual foundation necessary for raising the plea of law must have been laid in the pleadings and in the issues. Consequently, a party cannot be allowed to raise the plea of resjudicata for the first time in execution proceedings with regard to its maintainability on the basis that the decree is void and inexecutable passed in the suit which is barred by principle of resjudicata when the party has not raised this plea earlier. In that event by application of principle of constructive resjudicata the judgment debtors would be declined to raise such a plea in the execution proceedings.
Prithvichand Ramchand Sablok V. S.Y. Shinde, AIR 1993 SC 1929. It is well-settled that a decree passed on the basis of a compromise by and between the parties is essentially a contract between the parties which derives sanctity by the court superadding its seal to the contract. But all the same the consent terms retain all the elements of a contract to which the court's imprimaturs is affixed to give it the sanctity of an executable court order.The court will not add its seal to the compromise terms unless the terms are consistent with the relevant law. …….. If the law vests exclusive jurisdiction in the court to adjudicate on any matter, the court will not add its seal to the consent terms unless it has applied its mind to the question. In such a case it is the independent satisfaction of the court which changes the character of the document from a mere contract to a court's adjudication which will stop the tenant from contending otherwise in any subsequent proceedings and operate as resjudicata. …………… The character of the con-sent -decree will depend on the nature of the dispute resolved and the part played by the court while superadding its seal to it. ………….. If a defendant is required to suffer the consequence of his failure to abide by terms stipulated, such consequence would he penal in nature. But if the defendant gets some benefit by complying with a requirement, such as clause can never be penal in character. Justice A.M. Ahmadi (as His Lordship then was) speaking for the Apex Court, was dealing with the consent decree, where the tenants were required to give the possession to the landlord by 10th October, 1970. By Clause-3 of the consent decree, a specific concession was given to the tenant to pay over the entire amount of arrears of rent, future mesne profits, electricity charges, water charges, the rent of the godown and the expenses of the suit by 10th October, 1970 and in such an eventuality it was agreed that the plaintiff will not execute the decree for possession. The trial Court passed a decree in terms of the compromise. The arrears so calculated worked out to Rs. 3,353.58 ps. as on 10th October, 1970. The tenant, however, paid a sum of Rs. 2,040/- only on 9th February, 1970 and, therefore, did not comply with the terms regarding payment of entire arrears on or before 10th October, 1970. In execution proceedings tenant raised objection as regards executability of the decree. The Executing Court rejected the objections raised by the tenant and ordered issuance of warrant for possession. The appeal preferred by the tenant came to be allowed. The order of the Executing Court was set aside and the prayer for eviction was dismissed. The decree-holder moved the High Court under Article 227 of the Constitution. The Bombay High Court set aside the order of the appellate Court and remitted the matter to the appellate Court with direction to decide the character of the compromise terms on the basis of which eviction was sought. The appellate Court reconsidered the matter and once again allowed the appeal. Against the said order, the decree-holder once again moved the High Court under Article 227 of the Constitution. The High Court considered the various provisions and the propositions of law and ultimately concurred with the appellate Court holding that the eviction of the tenant on the consent terms was correct and it was not required to be interefered with. It was in the aforesaid circumstances that the Supreme Court was approached and the Apex Court made very pertinent observations after elaborate reference to the Scheme of Bombay Rent Act in Para-4 of the reported judgment. The Apex Court thereafter proceeded to observe: It is well-settled that a decree passed on the basis of a compromise by and between the parties is essentially a contract between the parties which derives sanctity by the Court superadding its seal to the contract. But all the same the consent terms retain all the elements of a contract to which the Court's imprimatur is affixed to get it the sanctity of an executable Court order. We must, however, point out that the Court will not add its seal to the compromise terms unless the terms are consistent with the relevant law. But, if the law vests exclusive jurisdiction in the Court to adjudicate on any matter, e.g. fixation of standard rent, the Court will not add its seal to the consent terms by which the parties have determined the standard rent unless it has applied its mind to the question and has satisfied itself that the rent proposed by consent is just and reasonable. In such a case it is the independent satisfaction of the Court which changes the character of the document from a mere contract to a Court's adjudication which will estop the tenant from contending otherwise in any subsequent proceedings as operate as res judicata. If the standard rent is fixed solely on the basis of agreement between the parties, such a decree in invirum will not preclude the tenant from contending in any subsequent proceeding that the rent is excessive and require the Court to fix the standard rent.
The apex court in case of Pulavarthi Venkata Subba Rao & Ors. V. Valluri Jagannadha Rao & Ors. reported in AIR 1967 SC 591 held that the compromise decree is not a decision by the court but sets the seal of the court on the averments of the parties in following words : "The compromise decree was not a decision by the Court. It was the acceptance by the Court of something to which the parties had agreed. It has been said that a compromise decree merely sets the seal of the court on the agreement of the parties. The court did not decide anything. Nor can it be said that a decision of the court was implicit in it. Only a decision by the court could be res judicata, whether statutory under S. 11 of the Code of Civil Procedure, or constructive as a matter of public policy on which the entire doctrine rests. The respondents claim to raise the issue over again because of the new rights conferred by the Amending Act, which rights include, according to them, the re-opening of all decrees which had not become final or which had not been fully executed. The respondents are entitled to take advantage of the amendment of the law unless the law it itself barred them, or the earlier decision stood in their way. The earlier decision cannot strictly be regarded as on a matter which was "heard and finally decided." The decree might have created an estoppel by conduct between the parties; but here, the appellants are in an unfortunate position, because they did not plead this estoppel at any time. They only claimed that the principle of res judicata governed the case or that there was an estoppel by judgment. By that expression, the principle of res judicata is described in English law. There is some evidence to show that the respondents had paid two sums under the consent decree, but that evidence cannot be looked into in the absence of a plea of estoppel by conduct which needed to be raised and tried. The appellants are, however, protected in respect of these payments by the proviso to Cl. (iii) of S. 16 of the Amending Act."
Five-judge Bench of the apex court in case of Sailendra Narayan Bhanja Deo V. The State of Orissa reported in AIR 1956 SC 346. S.R. Das, C.J., states: "... a judgment by consent or default is as effective an estoppel between the parties as a judgment whereby the court exercises its mind on a contested case ...."
Supreme Court in the decision reported in Victoria v. K.V. Naik & Ors. (1997 (6) SCC 23). In that decision, the Supreme Court, by interpreting Explanation IV to S. 2(25) and S. 125(3) of the Kerala Land Reforms Act, as amended held that: "If the plea regarding Kudikidappu rights had not been raised, it would operate as constructive res judicata on the principle of "might and ought". If it was taken and rejected, it would operate as res judicata and the same cannot be raised in execution. Even if it was left open, in equity, justice and good conscience, it must not be extended to the mortgagee."
The basis on which the rule of res judicata is founded and its applicability have been succinctly set out in Daryao and others v. State of U.P. And others . AIR 1961 SC 1457 ''The rule of res judicata as indicated in Section 11 of the Code of Civil Procedure has no doubt some technical aspects for instance the rule of constructive res judicata may be said to be technical. But the basis on which the said rule rests is founded on consideration of public policy. It is in the interest of public at large that a finality should attach to the binding decisions pronounced by Courts of competent jurisdiction, and it is also in the public interest that individuals should not be vexed twice over with the same kind of litigation.'' For the rule of resjudicata to apply it is necessary that the decision arrived at was on merits to be binding on the parties. Further, that the decision is arrived at where in a contest both parties have an opportunity to prove their case. The Court ruled that when writ petition was dismissed in liming on grounds of laches or alternative remedy being available, the said decision shall not operate as res judicata. The Court observed, ''If a writ petition is dismissed in liming and an order is pronounced in that behalf, whether or not the dismissal would constitute a bar would depend upon the nature of the order. If the order is on the merits it would be a bar; if the order shows that the dismissal was for the reason that the petitioner was guilty of laches or that had an alternative remedy it would not be a bar, except in cases which are already indicated. If the petition is dismissed in liming without passing a speaking order then such dismissal cannot be treated as creating a bar of res judicata. It is true that, prima facie, dismissal in liming even without passing a speaking order in that behalf may strongly suggest that the Court took the view that there was no substance in the petition at all but in the absence of a speaking order it would not be easy to decide what factors weighed in the mind of the Court and that makes it difficult and unsafe to hold that such a summary dismissal is a dismissal on merits and as such constitutes a bar of res judicata against a similar petition filed.''
The Supreme Court again in Ferro Alloys Corpn. Ltd. and another v. Union of India and others reported at (1999) 4 Supreme Court Cases 149 held that before any issue is said to be heard and finally decided, the Court considering it has to be shown to have expressly considered such an issue and have decided it one way or the other and such decision should have obtained finality in the hierarchy of proceedings. Then only such an issue can be said to be heard and finally decided between the parties.''
Decision of the Supreme Court in the case of Sheodan Singh V. Daryao Kunvar, reported in AIR 1966 SC 1332, wherein it has been observed as under : "In order that a matter may be said to have been heard and finally decided, the decision in the former suit must have been on the merits. Where, for example, the former suit was dismissed by the trial Court for want of jurisdiction, or for default of plaintiff's appearance, or on the ground of non-joinder of parties or misjoinder of the parties or multifariousness, or on the ground that the suit was badly framed, or for failure on the part of the plaintiff to produce probate or letters of administration or succession certificate, when the same is required by law to entitle the plaintiff to a decree, or for failure to furnish security for costs, or on the ground of improper valuation or for failure to pay additional Court-Fee on a plaint which was undervalued or for want of cause of action or on the ground that it is premature and the dismissal is confirmed in appeal (if any) the decision not being on the merits would not be res judicata in a subsequent suit"
Decision of the Supreme Court in the case of Shivshankar Prasad Shah and another V. Baikunth Nath Singh, and others, reported in AIR 1969 SC 971, wherein it has been held as under : "Before a plea can be held to be barred by res judicata, that plea must have been heard and determined by the Court. The dismissal for default of the judgment debtor of an application filed by him under Section 47, Civil P.C. resisting the execution of the decree is not a final decision of the Court after hearing the parties and therefore does not operate as res judicata and he can raise that objection in a subsequent application filed him."
Supreme Court in Pawan Kumar Gupta v. Rochiram Nagdeo, AIR 1999 SC 1823, thus : "16. The rule of res judicata incorporated in Section 11 of the Code of Civil Procedure (CPC) prohibits the Court from trying an issue which "has been directly and substantially in issue in a former suit between the same parties," and has been heard and finally decided by that Court. It is the decision on an issue, and not a mere finding on any incidental question to reach such decision, which operates as res judicata...."
Supreme Court in Madhvi Amma Bhawani Amma and Ors. v. Kunjikutty Pillai Meenakshi Pillai and Ors., AIR 2000 SC 2301, has held : "...In order to apply the general principle of res judicata Court must first find, whether an issue in a subsequent suit, was directly and substantially in issue in the earlier suit or proceeding, was it between the same parties, and was it decided by such Court. Thus there should be an issue raised and decided, not merely any finding on any incidental question for reaching such a decision. So if no such issue is raised and if on any other issue, if incidentally any finding is recorded it would not come within the periphery of the principle of res judicata."
In Mohanlal Goenka vs. Benoy Kishna Mukherjee & Ors. 1953 AIR 65, 1953 SCR 377 , Supreme Court said that principle of constructive res judicata is applicable to execution proceedings is no longer open to doubt. It was a case in which the execution application was made and a notice of that application was served upon the judgment-debtor. No objection was raised to proceed with the execution proceedings resulting in sale of his property. He filed an application for setting aside the sale. The court said: ".....failure to raise such an objection which goes to the root of the matter precludes him from raising the plea of jurisdiction on the principle of constructive res judicata...'
Satyadhyan vs. Smt. Deorajin Debi 1960 AIR 941, 1960 SCR (3) 590 The Court made the following observations which bring out the cases in which the principle of res judicata applies in two stages of the same litigation and an interlocutory order falling in that category where principle of res judicata applies. The Court said: "The principle of res judicata applies also as between two stages in the same litigation to this extent that a court, whether the trial court or a higher court having an earlier stage decided a matter in one way will not allow the parties to re agitate the matter again at a subsequent stage of the same proceedings."
In Arjun Singh vs. Mohindra Kumar 1964 AIR 993, 1964 SCR (5) 946 , the Court said: "Interlocutory orders are of various kinds: some like orders of stay, injunction or receiver are designed to preserve the status quo pending the litigation and to ensure that the parties might not be prejudiced by the normal delay which the proceedings before the court usually take. They do not, in that sense, decide in any manner the merits of the controversy in issue in the suit and do not, of course, put an end to it even in part. Such orders are certainly capable of being altered or varied by subsequent applications for the same relief, though normally only on proof of new facts or new situations which subsequently emerge. As they do not impinge upon the legal rights of parties to the litigation the principle of res judicata does not apply to the findings on which these orders are based.....There are other orders which are also interlocutory, but would fall into a different category, the difference from the once just now referred to lies in the fact that they are not directed to maintaining the status quo, or to preserve the property pending the final adjudication, but are designed to ensure the just, smooth, orderly and expeditious disposal of the suit. They are inter locutory in the sense that they do not decide any matter in issue arising in the suit, nor put an end to the litigation. The case of an application under O.IX R. 7, Civil Procedure Code, would be an illustration of that type."
In Vithal Yeshwant Jathar vs. Shikandarkhan Makhtumkhan Sardesai [(1963) 2 SCR 285], this Court observed that "it is well settled that if the final decision in any matter at issue between the parties is based by a Court on its decisions on more than one point each of which by itself would be sufficient for the ultimate decision the decision on each of these points operates as res judicata between the parties."
In Shakur Basti Shamshan Bhumi Sudhar Samiti v. Lt. Governor, NCT of Delhi (2007) 13 SCC 53, the order passed by the High Court for closure of cremation ground, in conformity with zonal development plan, had attained finality. This Court has held that any subsequent order passed in ignorance of the order of the High Court which has attained finality is nullity.
In India Household and Healthcare Ltd. v. LG Household and Healthcare Ltd., 2007 (5) SCC 510, this Court has held: "The doctrine of comity or amity required a court not to pass and order which would be in conflict with another order passed by a competent court of law”
U.P. State Road Transport Corporation v. Asstt. Commissioner of Police (Traffic) Delhi [2009(3) SCC 634], wherein it is observed that “a decision is an authority, it is trite for which it decides and not what can logically be deduced therefrom. This wholesome principle is equally applicable in the matter of construction of a judgment. A judgment is not to be construed as a Statute. It must be construed upon reading the same as a whole. For the said purpose, the attending circumstances may also be taken into consideration.”