- (1.)In Second Appeal No. 572 the appellant is the original plaintiff, and the only question in this appeal is whether the suit to recover a portion of the Yedur property is barred under Section 47 of the Civil Procedure Code. The lower appellate Court has held, differing from the trial Court, that the suit is so barred because the plaintiff ought to have proceeded in execution of the award decree of 1894 for recovering this property inasmuch as it was directed in that decree that on the death of Bhujang, which took place in 1898, the plaintiff was entitled to recover one-third share in this property. The lower Court has based this reasoning not on the ground that there was an executable decree based on the award but on the ground that although there was no judgment or decree in conformity with law based on the award, the plaintiff, who had filed a certain application in execution of the order of the Court directing the award to be filed, is estopped from contending that the order did not amount to a decree and was not executable as such.
(2.)Now, it appears that this award was filed in Court, and under the Civil Procedure Code the Court has to pass a judgment directing the award to be filed and thereafter a decree is to follow in terms of the award. In other words, there must be two documents, one judgment and the other a decree in terms of the award. Here, however, there is only one document which is styled as a decree and it recites that the award should be filed without saying anything more, and there is the assessment of the costs of the parties. It, no doubt, does appear that the plaintiff filed an application to execute that order treating it as a decree, and he seems to have obtained some relief under it though not exactly in terms of the decree. But it is quite certain that there is no document in law which can operate as a decree in terms of the award. Even the lower appellate Court has recognised this, because it says that there is in law no judgment and no decree. The ground of estoppel on which the lower Court has based its judgment seems to me to be erroneous. Even though the plaintiff erroneously thought the order as a decree and executable as such and obtained some relief under it though not as contemplated by the award, still it woud not disentitle him from contending subsequently that he was mistaken in treating it as a decree if in law it did not amount to such. There cannot be estoppel against a statute and the doctrine of approbate and reprobate also cannot apply. It applies only to the conduct of the parties, and the conduct of the parties is immaterial when the question of the legality of a document is concerned. It is held in Ishwardas Jagjiwandas v. Dosibai, I.L.R. (1882) 7 Bom. 316 that before effect can be given to an award by execution proceedings, there must be a judgment according to the award and a decree following thereon. This seems to be the only case on this point, and no authority has been cited to show that where there is no judgment and where the order simply directs that the award should be filed without incorporating the terms of the award in the decree, that order is executable as a decree. The trial Court, in my opinion, took the correct view when it held that it was not executable and that this suit was not barred under Section 47 of the Civil Procedure Code. I think, therefore, that the decision of the lower Court on this point is not correct, and that there is no bar of Section 47 of the Civil Procedure Code.
(3.)It is, no doubt, true that if the plaintiff had come to the Court to enforce the award after twelve years from the date of the award without there being any acknowledgment in the meanwhile, his suit based on the award would be time-barred. But on that point there is a definite finding of both the lower Courts that the suit is not barred because there have been acknowledgments by the defendants' predecessors, and no adverse possession by them. That being so, the award is still enforceable, and a suit can be maintained to enforce the award. The present suit is indeed of that type inasmuch as it prays for a relief in accordance with the award.
;