N.G. Chandavarkar, J.
1. So far as the appeal is concerned, it must fail. We disposed of the points argued in the course of the hearing.
2. The cross-objections of the respondent must be allowed for the following reasons.
3. The appellant, who is found by the lower Court to be an agriculturist within the meaning of that term as defined in the Dekkhan Agriculturists' Relief Act, had an award made against him and in favour of the respondent by arbitrators on reference without the intervention of the Court on a mortgage, with directions as to payment of the mortgage money and sale in case of failure to pay. The award was filed in Court by the respondent and a decree made in its terms. The respondent having applied for execution of the decree, the appellant prayed for relief under Section 15B of the Act. The lower Court granted the prayer.
4. It is now contended before us by the respondent in support of his cross-objections to the decree that the Court had no power to act under Section 15 B, because (it is urged) the original decree, of which execution was sought, having been passed on an award, is not a decree in a suit for sale as contemplated by that section read along with Section 3, Clause 00 of the Act. In support of that contention the respondent's counsel relies on the decision of this Court in Mohan v. Tukaram ILR (1895) 21 Bom. 63, where it was held that an application under Section 525 of the Code of Civil Procedure (Act XIV of 1882) to file an award, to which agriculturist debtors are parties, is not a suit within the meaning of Sections 3, 12, or 47 of the Dekkhan Agriculturists' Relief Act. The appellant's pleader, on the other hand, replies that the decision in question should no longer be regarded as good law binding on this Court, having regard to the judgment of the Judicial Committee of the Privy Council in Ghulam jilani v. Muhammad Hassan (1901) L.R. 291 IndAp 58, where their Lordships say of an award made by arbitrators on reference by parties without resort to litigation, that 'proceedings described as a suit and registered as such must be taken to bring the matter' under the cognizance of the Court and that the order made thereon is a 'decree' within the meaning of the expression as defined in the Civil Procedure Code.
5. It is to be remarked at the outset that the reasoning of the judgment of this Court in Mohan v. Tukaram proceeds partly on the consideration that the procedure laid down in the Civil Procedure Code with reference to an application to file a private award is different from that prescribed for the hearing of an ordinary suit. But though the procedure varies, the result is the same in one respect, viz. that, in either case, the Court passes a decree. And a decree, as defined in the Code, is a final adjudication on the rights of the parties in a suit. That makes a proceeding, which ends in a decree in terms of a private award, filed in Court, a suit.
6. To that extent the reasoning of the judgment in Mohan v. Tukaram is fairly open to criticism. But a careful examination of the judgment with reference to the point, which the Court had to decide, shows that that reasoning was not necessary for the actual decision and that the broad conclusion from that reasoning--viz. that an application to file an award is not a suit within the meaning of the term in the Code of Civil Procedure--is an obiter dictum.
7. If we look to the actual point decided by the judgment in question and to that part of the reasoning in it, which was necessary to support it, no inconsistency will be found between Mohan v. Tukaram and the Privy Council decision in Ghulam Jilani v. Muhammad Hassan.
8. What the Court had to decide in Mohan v. Tukaram was, whether a private award to which agriculturist debtors are parties, can be filed by Civil Courts without adjusting the account under the Dekkhan Agriculturists' Relief Act. For that purpose the Court had to consider whether such an application was asuit within the meaning of Sections 3, 12, or 45 of the Act.
9. That was the narrow question for decision, whether an application to file an award is a suit of the kind or kinds contemplated by the Act.
10. The latter portion of the judgment in Mohan v. Tukaram examines some of the sections of the Act to answer it. Section 47 (mistaken in the judgment apparently for Section 43) enables parties to refer their dispute through a conciliator to arbitration. According to the Act, effect has to be given by the Court to the award without scrutiny (s. 45 ). Section 12 requires the Court to give effect to an agreement to refer a dispute to arbitration, when the parties are before the Court, and to file it under Section 522 of the Code of Civil Procedure (Act XIV of 1882). From these provisions the judgment proceeded to draw its conclusion in the following words:--'If the Legislature has thus thought fit to preserve the full effects of an award in the case of a reference to arbitrators made after proceedings begun, there is, we think, no reason for presuming that it had a contrary intention in the case of a reference and award prior to such proceedings. We think we ought to follow the ruling in Gangadhar v. Mahadu and hold that the award should be filed without inquiry under Section 12.'
11. In other words, the Court is not empowered by the Dekkhan Agriculturists' Relief Act to reopen an award made on a private reference and go behind it for the purpose of taking accounts between the parties and pass a fresh decree under the Act. That is the point of the decision in Mohan v. Tukaram following Gangadhar v. Mahadu ILR (1883) 8 Bom. 20: and the ground necessary and sufficient to support it, as given in the judgment, consists in the scheme and intention of the Act, according to which an application to file such an award is not a suit of the kinds contemplated by it.
12. This ground is, I think, unassailable. If, according to the scheme and intention of the Dekkhan Agriculturists' Relief Act, a private award must be given effect to by the Court when it is filed and a decree passed on it without reference to the provisions of the Act as to examination of the merits of the case from the commencement of the transactions between the parties, and as to the taking of an account between them, it would be nullifying the scheme and intention of the Legislature to hold that an application to file such an award is a suit of the kind contemplated by the Act.
13. The principle of Mohan v. Tukaram and Gangadhar v. Mahadu so far is not touched by the judgment of the Privy Council. The Dekkhan Agriculturists' Relief Act has been amended in some respects since both Gangadhar v. Mahadu and Mohan v. Tukaram expounded the law in 1883 and 1895 respectively, and yet the Legislature has not modified the Act so as to show that the law in question is contrary to its intention.
14. That principle applies to the present case. Here we have a decree for sale passed in terms of a private award filed in Court on application. Such an application may be a suit, but it is not a suit for sale within the meaning of Clause (y) of Section 3 of the Dekkhan Agriculturists' Relief Act, because a suit for sale contemplated by the Act is one in which the Court is required to do certain things, which the Act by necessary implication forbids in the case of applications to file private awards.
15. On these grounds the lower Court's decree must be reversed and the darkhast remanded for fresh hearing and disposal. Appellant to pay the costs of this appeal and cross-objections to the respondents. Other costs of the darkhast to be costs at the fresh hearing.
16. The appellant, the judgment-debtor, asks for a decree more favourable to him than that modified by the First Class Subordinate Judge of Poona but I see no good reason to suppose that the discretion exercised by the First Class Subordinate Judge was erroneously or even injudiciously exercised. Therefore I would dismiss the appeal with costs.
17. The respondent submits by way of cross-objections that the Subordinate Judge had no power under Section 15B of the Dekkhan Agriculturists' Relief Act to alter the decree. His reason is that the decree was not obtained in a suit for redemption, foreclosure or sale of the descriptions mentioned in Section 3, Clause (j) or Clause (2) of the Dekkhan Agriculturists' Relief Act. If there was not such a suit then Section 15B does not apply and the Subordinate Judge had no authority to alter the decree.
18. The decree was obtained on an award the result of arbitration out of Court. The present decree-holder made an application to have the award filed. It was filed and a decree in its terms was made. It is this decree which the First Class Subordinate Judge, purporting to act under the authority given by Section 158 of the Dekkhan Agriculturists' Relief Act, has modified.
19. The award related to a mortgage debt and provided how that debt was to be discharged, ft has become a decree and is substantially, it is said, a mortgage decree or a decree such as is made in a mortgage suit. This 1 will admit, for though it is not in form a decree which could be made under the Transfer of Property Act and perhaps not strictly in the form of a decree which could be made under the provisions of the Dekkhan Agriculturists' Relief Act, it is in substance the adjustment or settlement of a mortgage debt. Nevertheless the suit in which that decree was obtained was not a suit of the descriptions mentioned in Section 3, Clause (y) or (z) of the Dekkhan Agriculturists' Relief Act. The suit was a suit to file an award. That is how the suit can be and must be described. It cannot be described as a suit for foreclosure, or for the sale of property or for redemption; and it is the description of the suit with which we are concerned. But in substance also there is no similarity between a suit to file an award even though the award relates to the discharge of a mortgage debt, and a suit for foreclosure, sale or redemption. In the former the Court is not asked to and does not determine the amount of the mortgage debt or the conditions on which or the way in which that debt is to be discharged. All these matters are determined out of Court and the Court only has to decide, if the question be raised, whether there was an award which the law regards as binding. In the latter kind of suit the Court goes into the relations existing between mortgagee and mortgagor, determines the amount of the mortgage debt, and how it is to be discharged.
20. To me the two suits are essentially different; not alike either in description or in form or in nature. Therefore I would set aside the order of the First Class Subordinate Judge and allow the cross-objections with costs.
21. I have not based my decision on the argument that an application to file an award is not a suit as was held in the case of Mohan v. Tukaram ILR (1895) 21 BOM. 63 for there are difficulties in the way of following that decision in consequence of the observations of the Privy Council in the case of Ghulam Khan v. Mohammad Hasan ILR (1901) Cal. 167. Whether the difficulties are insuperable it does not seem to me to be necessary here to enquire.