1. The appellant in this appeal claims title to the western half of a certain house. The respondent was a decree-holder against a cousin of the appellant, who, according to the appellant, owned the eastern half. In execution of the decree, the respondent took delivery of the entire house. There was then an application under Order 21, Rule 100 by the appellant asking the Court to redeliver to him the western half of this house. During the progress of the inquiry into-that application, the respondent challenged the appellant in the following words:
If the petitioner swears on oath that the western half of the suit house belongs to him solely and that he himself built it and at the time when the plaintiff went for taking delivery it was in his possession, then to the extent of the western half, the petition may be allowed.
2. The appellant accepted the challenge and gave evidence on special oath in the affirmative on all the three points put to him by the respondent. This oath was of course followed by the allowing of the appellant's petition. The respondent then filed a suit under Rule 103 against the appellant and his brother and they took the objection that no suit would lie because of the evidence which the appellant had given on oath. This preliminary objection was upheld by the District Munsif. On appeal, the learned District Judge of Vellore found that the oath was no bar to the suit and accordingly remanded the suit for disposal after trial on the other issues. Against that order of remand, the present appeal has been filed.
3. The main question to be decided in this appeal is the interpretation of Section 11 of the Indian Oaths Act. Section 11 which refers to evidence given on special oath runs as follows:
The evidence so given shall, as against the person who offered to be bound as aforesaid, be conclusive proof of the matter stated.
4. And the question which I have now to decide is whether this section relates to the proceeding in which the evidence was given alone or whether it relates to all possible proceedings in which the subject-matter of the evidence given on oath may be involved. In favour of the latter view is no doubt the fact that in Section 11 no specific statement is made restricting the particular proceedings in which the evidence shall be conclusive proof. On the other hand, Sections 8 and 9 obviously refer to some one judicial proceeding, and it seems to me the only proper method of interpreting Section 11 is to interpret it in conjunction with Sections 8 and 9 and that its primary meaning must be that the evidence given in any proceeding in which a challenge has been made and an oath, has been taken shall be in that proceeding conclusive proof of the matter stated. This seems to me clear from the expression 'the evidence so given'. It cannot automatically be evidence at all except in the proceeding in which it is actually being received. If there is a subsequent proceeding, then until that statement made on oath is brought into that subsequent proceeding, it cannot even be considered.
5. It is however argued on behalf of the appellant that although the suit under Order 21, Rule 103, may not in one sense be the same proceeding as a petition under Rule 100, it is, nevertheless, a continuation of, or in the nature of an appeal from that form of proceeding and therefore any evidence given under the special provisions of the Oaths Act in a proceeding under Rule 100 must be conclusive proof in any suit under Rule 103. In support of this argument, I have been referred to a decision in Krishnappa Chetty v. Abdul Khader Saheb (1913) 26 M.L.J. 449 : I.L.R. 38 Mad. 535, in which it has been held that a suit of this kind is a continuation, of a claim petition with regard to the doctrine of lis pendens. In Krishnappa Chetty v. Abdul Khader Sahib (1913) 26 M.L.J. 449 : I.L.R. 38 Mad. 535, an alienation which took place between the disposal of a claim petition and the institution of a suit was held to be affected by the doctrine of lis pendens. Again in Phul Kumari v. Ghanshyam Misra (1907) 17 M.L.J. 618 : L.R. 35 IndAp 22 : I.L.R. 35 Cal. 202 , the Privy Council dealing with a question of court-fee, has pointed out how a suit of this nature to set aside an order in a claim petition is in the nature of an appeal or a review and therefore, comes within a particular provision of the Court-Fees Act and is chargeable with a particular sum as court-fees. It does not seem to me that these rulings afford much guidance in the decision of the present appeal. No doubt, for some purposes, the suit which follows the order on the claim petition may be a continuation of the same proceedings but the scheme of the Civil Procedure Code itself shows that there is an essential difference' between the two. The claim proceedings is in the nature of a summary proceeding which gives a provisional result, and the scope of the suit is very much wider. It seems to me impossible to hold that unless it is clearly present to the minds of the parties that the evidence which is going to be given in the claim petition is in no manner to be challenged in or by a subsequent suit, an oath in those claim proceedings must relate to the claim proceedings themselves and to them alone.
6. If we go back to the terms of the challenge in the present case, we find no doubt that the appellant was called upon to repeat on oath his contention that he was the owner of the western half of the suit house. It does not seem to me reasonable to argue that because the appellant was called upon to make that statement, the respondent was setting the whole question of title in issue between himself and the appellant or that the respondent had in mind a complete promise never to proceed against the appellant in the Civil Courts under Rule 103. The limitation within which the challenge was made is clearly to be seen in his own words:
That if the appellant makes the statement on oath then the petition may be allowed.
7. All that that means, it seems to me, is that the respondent has no objection to the appellants being put in immediate possession of the western half of the house, if he be resolute enough to restate his contentions by taking a special oath. This is in itself a very real concession and, it seems to me, that on the language of the challenge itself, all that the respondent meant was that the particular petition in which he was engaged might be decided unfavourably to himself. Of course, he has not in so many words reserved in the challenge any right to file a suit. But, it seems to me, that the burden lies upon the other side to establish that the challenge was intended to have any effect upon any possible civil suit which might be filed under Rule 103 The only way in which the evidence given in the claim petition could be used to defeat the respondent seems to me to be, if the doctrine of res judicata were to apply to the subsequent proceeding. Obviously, in the present case, the doctrine of res judicate cannot apply because the order on a claim petition is specifically made subject by the provisions of the Civil Procedure Code itself to the result of a suit under Section 103 and the appellant's learned advocate did not attempt to rely upon the doctrine of res judicata. I am accordingly of opinion that the order of the learned District Judge remanding this suit was correct and that this appeal must fail. It is accordingly dismissed with costs.
8. Leave granted.