1. The learned District Judge has held the award to be no bar to the suit, out of which this appeal has arisen, because, in his opinion, the award does not confer any title by itself but 'at the most amounts to an agreement to convey' it. The terms of the award do not, in my opinion, warrant that view.
2. The circumstances under which the award was passed are shortly these. Bai Lala (the first respondent) having mortgaged the property in dispute inherited by her as a Hindu widow from her husband, to Bechar Bhagwan (the second respondent), the appellants claiming as the reversionary heirs of the husband, filed Suit No. 582 of 1893 for a declaration that the mortgage was of a fraudulent and colourable character. Both the mortgagor (Bai Lala) and the mortgagee (Bechar Bhagwan) were parties to the suit. During its pendency, the parties referred the dispute to arbitration, which ended in the award. According to its terms, the mortgage in dispute was upheld but the present appellants were declared entitled to stand in the place of Bai Lala as mortgagors and to redeem the mortgage on a date fixed by the award; and in consideration of the relinquishment of the equity of redemption by Bai Lala, she was held entitled to the possession and enjoyment of 18 bighas of land and a house during her life for maintenance. There is indeed a clause in the award, which says that on payment of Rs. 1,700 by the appellants to the mortgagee, the latter should execute a deed of re-conveyance. That clause, however, does not stand as a condition precedent to the rights adjudged in the award. The award like a decree speaks from its date and the rights of the respective parties come into existence with the award. Thenceforth the right to redeem the mortgage now in dispute which had belonged to the widow, Bai Lala, was transferred to the appellants and she became entitled to the specific maintenance provided for her in the award and no more.
3. It is clear to my mind from these terms that whatever right Bai Lala had to redeem the mortgage was extinguished by and became merged in the award and that the award is a valid defence to her present suit. An award is not, as the learned District Judge has supposed, a mere agreement but is equivalent to a judgment. As Lush, J., has pointed out in Commings v. Heard (1879) L.R. 4 Q.B. 669 : 'It is binding between the parties in all matters which it professed to decide. It was contended that an award is not an estoppel and that the parties are not concluded by an award, that it is distinguishable from a judgment. When once a matter has been decided between the parties, the parties ought to be concluded by an adjudication, whatever it may be.... It is not a new doctrine that an award is a bar.'
4. And this doctrine has been acted upon by the Privy Council and our High Courts in several cases of which I need mention but two--Rani Bhagoti v. Rani Chandan L.R. 12 IndAp 67: 11 C. 386 and Muhammed Nawaz Khan v. Alam Khan L.R. 18 I.A. 73: 18 C. 414. In the former case it was a dispute between two Hindu widows as to their respective rights in the estate of their deceased husband. It was referred to arbitration and the arbitrators declared one of them to be entitled only to maintenance. She, however, brought a suit to recover half of the estate from the other widow, claiming as heir to her husband. The Privy Council held that the award was binding on her and that she could not claim any right beyond that declared in her favour by the award. The suit was, accordingly, dismissed.
5. In the present appeal before us it has been contended that the enforcement of the award has become barred by limitation and that consequently the former rights are revived. Whether the award has become so barred and whether in consequence the former rights are revived is a question which is not pertinent to the present suit: it can properly arise only in a suit the object of which is to enforce the rights under the award.
6. What appears to have influenced the learned District Judge mainly in the conclusion at which he has arrived is the fact that the parties to the award, especially the present appellants, have not carried out its terms. But that is not in law sufficient to deprive the award of its binding effect. 'In order that the parties should be remitted to their previous rights, it is not enough that the award was not enforced or that even both parties objected to it. There must be positive evidence that both parties agreed that the former state of things should be restored:' Krishna Panda v. Balaram Panda 19 M, 290. In the present case it has never been pleaded by any party that there was any agreement subsequent to the award to restore the parties to the rights they had respectively before the award.
7. For these reasons I would reverse the decree appealed from and restore that of the Subordinate Judge with costs in this and the lower Appeal Court on the first respondent.
8. I agree that the award, the existence and validity of which are not disputed, had the effect of putting an end to the plaintiff's rights as a mortgagor and of substituting for those rights a right to maintenance. But she has sued as a mortgagor and in no other capacity. She has no right to sue in this way and I think the decree of the First Court dismissing the suit should be restored and the order of remand made by the District Judge should be set aside.