1. This appeal is directed against the decision of the Civil Judge Bhopal holding the plaintiff's suit as incompetent by reason of Section 47 C. P. Code and dismissingthe same.
2. Facts giving rise to the present appeal may be briefly stated as follows:
A decree for Rs. 21,700/- was passed on the basis of an award on 13-3-1949 under the terms of which the aforesaid sum was payable by four equal instalments of Rs. 5,425/- each falling due on 1-8-1948, 1-11-1948, 1-3-1949 and 26-6-1949. The plaintiff in whose favour thatdecree was passed applied for its execution against the defendant on 16-7-1949. The defendant appeared in the execution proceedings and objected to the maintainabilly of the execution application on what according to him was the true interpretation of the award and the decree based on it. The objection did not find favour with the executing Court but was upheld by the learned Judicial Commissioner Bhopal by his decision dated 17-12-1953. It was held by him that the remedy of the plaintiff appellant was not by means of an execution application and that he ought to have filed a suit to enforce his right. The petition was accordingly dismissed. The defendant had paid certain amounts during the pendency or the aforesaid proceedings and the plaintiff had withdrawn them under the orders of the Court. The plaintiff now accepting the decision of the learned Judicial Commissioner brought the present suit for the recovery of the balance of his dues inclusive of interest and costs in all amounting to Rs. 5918-4-3.
3. The defendant in para 13 of the written statement now raised the contention as to incompetency of the present suit though the grounds of incompetency were not stated. He also raised the contentions regarding limitation and the extent of the plaintiff's dues.
4. The trial Court framed issues bearing on the questions of (1) limitation, (2) the extent of the plaintiff's dues in balance if any, and (3) the relief.
5. The trial Court took up for consideration issue No. 3 relating to relief claimed by the plaintiff and held, that in view of Section 47 C. P. C. such a suit was incompetent. It was observed by him with reference to the decision, of the learned Judicial Commissioner Bhopal referred to above-
'With very great respect to the Hon'ble superior Courts I may humbly submit that a decree being a conclusive determination of a dispute under the statute cannot lawfully sanction re-opening of the dispute in a manner that would lead to the passing of another decree as respects the same controversy.'
The learned Judge on this view entertained by him did not record any finding on the other two issues. He accordingly held the suit as incompetent and dismissed it.
6. The present appeal is directed against that decision.
7. It is contended on behalf of the plaintiff-appellant that the question regarding the incompetency of the execution proceedings has been finally determined by the decision of the Judicial Commissioner Bhopal on the contention raised by the defendant himself. The derision binds the parties and also creates an estoppel. The Court below was therefore precluded from holding the suit as incompetent.
8. In my opinion the contention raised on behalf of the plaintiff-appellant is correct and ought to be accepted. It is well settled that a party cannot be allowed to approbate and reprobate. This principle is based on the maxim 'Allegans contraria non est audiendus.' It means he shall not be heard who says things contradictory to each other. The maxim applies to proceedings in Court. It creates a sort of estoppel. Bigelow on Estoppel, sixth edition, states the principle as follows:
'If parties in court were permitted to assume inconsistent positions in the trial of their causes, the usefulness or Courts of justice would in most cases be paralysed, the coercive process of the law, available only between those who consented to its exercise, could be set at naught by all. But the rights of all men, honest and dishonest, are in the keeping of the Courts, and consistency of proceeding is therefore required of all those who come or are brought before them. It may accordingly be laid down as a broad proposition that one; who, without mistake induced by the opposite party, has taken a particular position deliberately in the course of a litigation must act consistently with it; one cannot play lost and loose.'
9. At another place in the same book the learned author makes the following observation:
'The principle under consideration will apply to another suit than the one in which the action was taken, where the second suit grows Out of the judgment of the first. It is laid down that a defendant who obtains judgment upon an allegation that a particular obstacle exists cannot in a subsequent suit based upon such allegation deny its truth.'
The defendant in this case having successfully contested the competency of execution proceedings started on the basis of the decree on the award on the ground that the decree contemplated enforcement of the claim by means of a separate suit, cannot be allowed to say, when the plaintiff files such a suit, that the suit is not the appropriate remedy and it is barred under Section 47 C. P. C. This very question came up for consideration before the Judicial Commissioner's Court at Nagpur. In AIR 1929 Nag 79, Uttamchand v. Saligram, learned Additional Judicial Commissioner Kinkhede, held that the defendant before him, who had successfully maintained that Section 47 did not apply and the remedy of the party was by a separate suit, could not take up an inconsistent position when the suit is filed by putting forward the bar of Section 47 by way of defence. The same view is taken by Dalip Singh J., in AIR 1938 Lah 525, Tegu Mal v. Moti Lal. The learned Judge approved of the Nagpur decision referred to above. He held that the principle that there can be no estoppel against a statute and on a point of law has no application where the question relates to proredure as to the appropriate form of remedy.
In AIR 1931 Oudh 123, Mahadeo Singh v. Pudai Singh, Shrivastava and Wazir Hasan, JJ. held that where a civil suit was filed as a result of the decision of the Board of Revenue on the contention raised by the defendant that the Revenue Court has no jurisdiction to try the cause the same defendant could not be allowed to contend that the jurisdiction was with the Revenue Court and the Civil Suit was incompetent. The learned Judges followed the decisions in ILR 41 Cal 69 : (AIR 1914 Cal 143) Bhagirathi Dass v. Baleswar Bagarti, 30 Ind Cas. 551 : (AIR 1915 All 463), Abdul Qayum v. Fida Hussain, and severalother cases. Recent decision of the Patna High Court reported in AIR 1955 Pat 198, Khurshed Ali v. Commissioner of Tirhut Division, followed the principle laid down in the aforesaid Calcutta and Oudh decisions and applied it to the case where the defendant who had successfully pleaded that the Civil Courts had no jurisdiction to try a suit for his eviction because of the bar imposed by the Rent Control Act, could not be allowed to question the jurisdiction of the Rent Controlling Authority when it is subsequently approached by the plaintiff.
10. On consideration of all these decisions it appears clear to me that the decision of the learned Subordinate judge holding the suit to be incompetent is unsustainable. The decision is therefore set aside and the case is sent back to him for disposal in accordance with law after determining other issues left undetermined by him. The appellant to entitled to costs of this appeal from the respondent.
11. A certificate may be issued for refund of the Court-fee paid by the appellant for this appeal as the case is covered by Section 13 of the Court-fees Act.
P.K. Tare, J.
12. I agree.