A party cannot be allowed to approbate and reprobate, and is estopped from taking inconsistent positions in the course of litigation.

( 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 dismissing the 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 13-31949 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, 1-111948, 1-3-1949 and 26-6-1949. The plaintiff in whose favour that decree was passed applied for its execution against the defendant on 167-1949. 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 The defendant had paid certain amounts during the pendency or the aforesaid proceedings and the plaintiff had withdrawn them under the orders of the Court.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