1. This is an appeal from the order of the Principal Subordinate Judge of Tinnevelly, dated February 20, 1934, reversing in appeal the decree, of the District Munsif of Tinnevelly dated January 27, 1933 in O.S. No. 279 of 1931 and remanding that suit for fresh disposal in the light of the observations made by him. The suit was one for a declaration of the plaintiff's exclusive title to a house and for cancellation of the entry of the 2nd defendant's name in the house-tax payment register of the Union Board as the joint owner of the house along with the plaintiff and also for a mandatory injunction directing the President of the Union Board, the 1st defendant, to strike off the 2nd defendant's name from the register.
2. The really contesting defendant was the 2nd defendant who denied the title of the plaintiff. A number of issues were framed by the trial Court but after all the evidence had been taken, both parties made an endorsement on the plaint to the effect that if with the key produced by the 2nd defendant the Commissioner to be sent by the Court could open the door of the house and the 2nd defendant's things were found in the house, the suit should be dismissed and that otherwise the suit should be decreed.
3. As both sides agreed to have the suit decided in this way a commission was issued by the Court and the Commissioner found that the key given by the 2nd defendant would not fit any of the locks, that on the other hand, the locks were opened with the keys produced by the plaintiff and the articles found in the house were plaintiff's articles.
4. After this report was made the 2nd defendant wanted to resile from his agreement and to have the suit disposed of on the basis of the evidence recorded in the suit. This application by the 2nd defendant was dismissed and the plaintiff's suit was decreed with costs as against the 2nd defendant.
5. The 2nd defendant appealed to the Subordinate Judge and in appeal the learned Subordinate Judge was of opinion that the District Munsif was not justified in decreeing the suit on the strength of the joint endorsement made on the plaint by the parties and that he should have decided the suit in the light of the evidence recorded in the suit. He accordingly set aside the decree of the District Munsif and remanded the suit for fresh disposal. The present appeal is from the order of remand.
6. A good deal of argument has been addressed in the appeal to show that the joint endorsement amounts to an adjustment of the suit within the meaning of Order XXIII, Rule 3, Civil Procedure Code.
7. A number of authorities have been quoted, but I think it is unnecessary to decide in this appeal whether the joint endorsement amounts to an adjustment within the meaning of Order XXIII, Rule 3,? Civil Procedure Code. Even assuming that it is not an adjustment the fact remains that the 2nd defendant himself requested the Court to decree the suit in favour of the plaintiff if a certain thing happened, namely, if the key that was produced by him did not fit the lock. The Court did what it was asked to do by the 2nd defendant. After this was done, namely after a Commissioner was appointed and it was actually found that the key did not fit the lock it was not open to the 2nd defendant to resile from what he had stated before in Court. When a party invites the Court to adopt a procedure which is not contemplated by the Code of Civil Procedure and is in fact a procedure extra cursum curiae he cannot turn round and say that the Court is to blame for adopting the very procedure which he invited the Court to follow. There is such a thing as estoppel apart from the question of adjustment and the doctrine of estoppel would apply to a party who attempts to blow hot and cold in this fashion.
8. As was held in Burgess v. Morton. (1896) AC 136 : 62 LJQB 321 : 73 LT 713 where with the acquiescence of the parties the Judge departed from the ordinary course of procedure and decided upon a question of fact, it was incompetent for the parties afterwards to contend that they have an alternative mode of proceeding with the trial as if it had been heard in due course. Lord Watson observed in that case that there were several decisions of the House of Lords which affirmed 'that the judgment of the Court below pronounced extra cursum curaie is in the nature of an arbiter's award and that as a general rule at least no appeal from it will lie.'
9. In this particular case it is clear that the decree passed by the District Munsif must be deemed to be a decree passed with consent of both parties and it is not open to either party to appeal from it. On this ground alone it would follow that the appeal must succeed. The 2nd defendant is not' entitled to appeal from the decree of the District Munsif and the decree could not be varied or reversed in appeal by the Subordinate Judge. The order of the Subordinate Judge reversing the decree and remanding the suit must be set aside, and the decree of the District Munsif restored. The appellant is entitled to have his costs in this Court and in the Court below from the 2nd defendant respondent. The 1st respondent will bear his own cost. Leave to appeal is asked for but I see no reason to grant it.