Judgement

Appeal (No. 89 of 1923) from a decree of the High Court (November 30, 1921) reversing a decree of the Subordinate Judge of Rajshahi.

The suit was brought by the appellant on July 9, 1917, to recover possession of certain lands under an award of arbitration dated June 10, 1905. In 1905 the appellant had applied to the Subordinate Judge under s. 525 of the Code of Civil Procedure, filing the award and praying for a decree; a decree was

89 Law. Rep. 52 Ind. App. 79 ( 1924- 1925)

Sasi Sekhareswar Roy V. Lalit Mohan Maitra 190

made on March 17, 1906, in the following terms " It is decreed that this suit be decreed in terms of the award, annexed hereto."

The defendant, by his written statement, pleaded (inter alia) that the award having been made a decree no second suit would lie, the remedy being by executing the decree of 1906, and that that remedy was barred by limitation.

The Subordinate Judge held that the decree was not capable of execution and that the suit therefore was not barred by s. 47 of the Code of Civil Procedure, 1908.

The High Court reversed the decree. The learned judges (Woodroffe and Ghose JJ.) were of opinion that the decree was capable of execution, and that the present suit being based upon the same cause of action—namely, the award— was not maintainable.

1924. Oct. 30, 31. Sir George Lowndes K.C. and Dube for the appellant. The cause of action upon the award is not the same cause of action which existed before the arbitration. The decree was not capable of execution since it was merely declaratory; it did not decree that possession should be given. The Court can give delivery by execution only if the decree expressly decrees possession. Further, it appears that a large part of the land was jungle, of which the boundaries had not been fixed under the award.

De Gruyther K.C. and Parikh for the respondent. The decree embodying the award could have been executed. No case was made below, nor does the evidence establish, that the land was of such a nature that the boundaries could not be determined.

Oct. 31. The judgment of their Lordships was delivered by Lord Dunedin. In this case a question has arisen between two zamindars. They were in possession of certain properties in what may be called a very uncomfortable manner, that is to say, they possessed certain lands in common, and the way of possession was a very uncomfortable way. One got the rents of certain tenants, and the other got the rents of others, and sometimes they both went to the same tenant and each realized a portion of his rent. In order to get rid of this inconvenient situation, they agreed to arbitration; arbitration was accordingly held, and the arbitrator allotted certain villages to one and certain villages to the other. Thereupon possession to a certain extent was taken in accordance with the award.

The present suit was raised by the appellant, and the object of the suit was to get possession of certain lands which he said were his under the award, and of which the defendant was in improper possession. He makes a plain averment in the plaint. He says, after setting out the fact of the award and the finding "But in spite of his "—that is the defendant—" being bound in accordance with the provisions of the said award and the decree passed upon it to give up to the possession of the plaintiff "certain lands, " the defendant has not done so. The defendant is not entitled and has no right to enjoy and possess the lands mentioned "in the three schedules annexed. For relief he asks" That on declaration that the lands mentioned in the three schedules are lands depicted in the revenue survey maps of mauzas Lakshmipur, Bilborendra and Begpur respectively, and (on declaration) of the plaintiffs right on the basis of the aforesaid award and the decree passed upon it to get possession of the same, the plaintiff may get decree for khas possession of the same on eviction of the defendant from all these lands."

The answer that is made by the defendant