PETITIONE<NAME>: <O<NAME>G> & ANOTHE<NAME> Vs. <NAME>ESPONDENT: <NAME> & OTHE<NAME>S DATE OF JUDGMENT: 14/04/1961 BENCH: <NAME>, K. BENCH: <NAME>, K. DAYAL, <NAME>AGHUBA<NAME> MUDHOLKA<NAME>, J.<NAME>. CITATION: 1962 AI<NAME> 1 1962 SC<NAME> (1) 929 CITATO<NAME> INFO : <NAME> 1970 SC 376 (13) F 1971 SC1624 (6) ACT: Fatal Accidents--Negligent act of driver of bus--Acting in the course of employment--Liability of owner--Damages--Principles of ascertainment--Pecuniary loss and loss of expectation of life--If same person could claim under both heads-- Fatal Accidents Act , 1855 , SS. 1, 2. HEADNOTE: A bus run by the appellant met with an accident as a result of which <NAME> died. <NAME>'s dependents and heirs e.g. the father, widow and sons, brought a suit for compensation under S. 1 of the Fatal Accidents Act, 1855, for loss of pecuniary benefit sustained by them personally and under S. 2 thereof for the loss sustained by the estate on account of the death of <NAME>. The, <ORG> found that the bus was driven at an excessive speed and there was negligence on the part of the driver and that the appellants were liable for the same. On the question of damages, it confirmed the amount of compensation of <NAME>S. 25,000 under S. 1 of the Act for the loss of pecuniary advantage and of <NAME>s. 6,000 under S. 2 of the Act for loss of expectation of life. The questions for consideration were (1) whether the accident was due 117 930 to any negligence on the part of the driver; (2) whether the courts below were right in awarding compensation under s. 1 of the Act for pecuniary loss sustained by the widow and the sons of the deceased; and (3) whether the sum awarded as damages under S. 2 of the Act for loss of expectation of life should go towards the reduction of the compensation awarded for pecuniary loss sustained under s. 1 of the Act, as otherwise it would be duplication of damages in respect of the same wrong. Held, that where on the basis of the evidence and on broad probabilities it is found that the speed at which the bus was driven was excessive having regard to the nature of the ground on which the accident happened, there is a presumption that the accident was caused by the negligence of the driver. As the driver was acting in the course of his employment, the master would be liable for such accident, unless the presumption is rebutted by the master. In the present case, on account of the negligence of the driver in the course of his employment the accident happened, and, therefore, the appellant was liable for the same. <NAME> v. <ORG>,  2 All E.<NAME>. 460, <NAME> v. <NAME>, (1834) 6 Car. & P. 501 and <NAME> v. <NAME>, (1869) L.<NAME>. 4 Q.B. 476, applied. That the actual extent of the pecuniary loss to the aggriev- ed party may depend upon data which cannot be ascertained accurately, but must necessarily be an estimate, or even partly a conjecture. Shortly stated, the general principle is that the pecuniary loss can be ascertained only by balancing on the one hand the loss to the claimants of the future pecuniary benefit and on the other any pecuniary advantage which from whatever sources come to them by reason of the death, that is, the balance of loss and gain to a dependant by the death must be ascertained. <NAME> v. <ORG>,  A.C. 601 and <NAME> v. British Columbia Electric <NAME>ailway Company Ltd.,  A.C. 601, followed. Where the courts below have on relevant material placed before them ascertained the amount of damages under the head of pecuniary loss by the dependants of the deceased, such findings cannot be disturbed in second appeal except for compelling reason. Held, further, that the rights of action under ss. 1 and 2 of the Fatal Accidents Act are quite distinct and independent. If a person taking benefit under both the sections was the same, he cannot be permitted to recover twice over for the same loss. In awarding damages under both the heads, there shall not be duplication of the same claim, that is, if any part of the compensation representing the loss to the estate goes into the calculation of the personal loss under s. 1 of the Act, that portion shall be excluded in giving compensation under s. 2 and vice versa. 931 in the instant case, under s. 1 of the Act the sum of com- pensation was arrived at by taking into consideration, inter alia, the reasonable provision the deceased, if alive, would have made for his widow and sons. Under s. 2 the figure for damages awarded for the loss to the estate represents the damages for the mental agony, suffering and loss of expectation of life; thus there was no duplication in awarding damages under both the heads. <NAME>ose v. <NAME>,  A.C. 826, <NAME> v. <NAME>,  All E.<NAME>. 31, <NAME> v. <NAME>aine,  2 K.B. 180 and Secretary of <ORG> <NAME>, (1925) I.L.<NAME>. 6 Lah. 451, referred to. JUDGMENT:

CiVIL APPELLATE JURISDICTION: Civil Appeal No. 419 of 1957. Appeal by certificate from the judgment and decree dated January 16, 1953, of <ORG> in A. S. No. 164 of 1949.

<NAME>, for the appellants.

<NAME>, for the respondents.

1961. April 14. The Judgment of the Court was delivered by <NAME>, J.-This appeal by certificate, is directed against the judgment of <ORG> dated January 16, 1953, modifying the decree of <ORG>, <NAME>, in 0. S. No. 7 of 1948, a suit filed by the respondents for compensation under the provisions of the Fatal Accidents Act (XIII of 1855). The appellant, <ORG> (hereinafter called the <ORG>), was engaged in the business of transporting passengers by bus between Dharapuram and Palni, among other places, in the State of Madras. On September 20, 1947, one of the buses of the <ORG>, bearing registration number MDC 2414, left Dharapuram for Palni at about 3 p.m. At a place called Thumbalapatti between Dharapuram and Palni, one <NAME>, along with his brother by name <NAME>, boarded the bus. The bus met with an accident at about 3 miles from Palni, as a result of which some of the passengers, including <NAME>, sustained injuries. <NAME> died of the injuries received in the accident on September 23, 1947. The first plaintiff, his father; the second plaintiff, his widow; and plaintiffs 3 to 7, his sons, instituted 0. S. No. 7 of 1948 against the <ORG> in <ORG>, <NAME>, for compensation under s. 1 of the Fatal Accidents Act (hereinafter called the Act) for loss of pecuniary benefit sustained by them personally, and under s. 2 thereof for the loss sustained by the estate on account of the death of <NAME>. They alleged in the plaint that the driver, who was in charge of the bus, was incompetent and inexperienced, that he was guilty of rash and negligent conduct in the driving of the bus, and that the accident was the result of his incompetence and negligence. The <ORG> in its written-statement denied the said allegations and leaded that the accident was the result of the central plea of the left rear spring suddenly giving way, that <NAME> was also guilty of contributory negligence and that in any event the damages claimed were excessive. The learned Subordinate Judge came to the conclusion that there was no proof that the bus was driven at a reckless speed at the scene of the accident, but the fact that the accident occurred on the off-side of the road was itself evidence of his negligence and it had not been rebutted by the defendants. He further held that the driver was not proved to be incompetent. On those findings, he held that the defendants were liable for the negligence of their servant, and be awarded damages as follows: (1)Plaintiff 1 ... Rs. 3,600 under s. 1 of the Act. (2) Plaintiffs 2 to 7... Rs. 25,200 under s. 1 of the Act. (3) Plaintiffs 2 to 7... Rs. 6,000 under s. 2 of the Act. Against the said decree, the defendants preferred an appeal to <ORG> and it came to be disposed of by a division bench of that court. <ORG> on a review of the entire evidence held that the speed at which the bus was driven was excessive, having regard to the nature of the ground on which the accident happened, that there was negligence on the part of the driver, and that the appellants were liable therefore. But <ORG> discounted the plea that the appellants, apart from their being constructively liable for the negligence of the driver, were also negligent in employing <NAME>, who was not a competent driver. Both the courts, therefore, concurrently held that the accident occurred on account of the negligence of the driver. On the question of damages, <ORG> confirmed the amount of compensation awarded to the plaintiffs 2 to 7 both under ss. 1 and 2 of the Act, but in regard to the first plaintiff, it reduced the compensation awarded to him from Rs. 3,600 to Rs. 1,000; with this modification, the appeal was dismissed with costs. Learned counsel for the appellants raised before us the following points: (1) The finding of <ORG> that the bus was driven at an excessive speed at the place where the accident occurred, based on probabilities, was erroneous. (2) The concurrent finding of the two courts that respondents 2 to 7 would be entitled to damages in a sum of Rs. 25,200 for the loss of pecuniary advantage to them was not based upon any acceptable evidence but only on surmises. (3) <ORG> went wrong in awarding damages separately for loss of expectation of life under s. 2 of the Act, as damages under that head had already been taken into consideration in giving compensation to respondents 2 to 7 for the pecuniary loss sustained by them by the death of <NAME>.

The first question for consideration is whether the accident was due to any negligence on the part of the driver <NAME>. A clear picture of the topography and the physical condition of the locality where the accident took place would, to a large extent, help us in deciding the said question. The accident took place at Puliampatti where the road passed over a culvert and then took a sharp bend with a downward gradient. To the east of the road was a drain and that was marked off by 5 stones 2 feet high. At a distance of 20 or 25 feet from the stones, there were trees. The bus after crossing the culvert crashed against the 5th stone with so much force that the latter was uprooted and broken. It next attacked a tamarind tree which was stated to be at a distance of 20 or 25 feet from the stone, and its bark was peeled off and it travelled some more distance before it finally came to rest. The evidence disclosed that some of the passengers were knocked and thrown down within the bus itself and sustained injuries, while <NAME> was thrown out of the bus into the ditch at a place 161 feet south of the tamarind tree. It must be self-evident from the said picture of the accident that the bus must have been driven at a high speed. P.Ws. 3 and 4, two of the passengers in the bus, P.W. 6, a brother of <NAME>, who also travelled in the bus, and P.W. 5, who ran a coffee and tea stall at the place of the accident, swore in the witness-box that the bus was being driven at a high speed when the accident happened. Their evidence reinforces the compelling impression of high speed caused by the objective features thrown out by the topography of the place of the accident. On the other hand, on the side of the defendants (appellants herein) <NAME>, who claimed to have travelled in the bus, deposed that the bus was travel- ling at the usual speed, but his cross-examination discloses that he was an improvised witness. <NAME>, who was sitting by the side of the driver, deposed to the same effect, but he was an employee of the <ORG> and was obviously interested to support their case. The evidence adduced on the side of the defence is certainly not convincing. An attempt was made to calculate the speed of the bus on the basis of the time given by P. W. 6 as to when <NAME> boarded the bus and the time when the bus dashed against the tree, and the mileage covered between the two points within the said time. On the basis of such a calculation it was contended that the speed would have been less than 15 miles per hour; but it is not possible to deduce the speed from such a calculation, as the witnesses were speaking of the time only approximately and not with reference to any watch. That apart, it cannot be said that the bus maintained an even pace throughout. <ORG>, on the basis of the evidence and on broad probabilities, held that the speed at which the bus was driven was excessive, having regard to the nature of the ground on which the accident happened; and having gone through the evidence, we are quite satisfied that the said finding was justified on the material placed before them. It must, therefore, be held that there was negligence on the part of the driver. Apart from the positive evidence, in the present case the accident took place not on the main road, but on the off- side uprooting the stone at the drain and attacking a tamarind tree 25 feet away from the said stone with such a velocity that its bark was peeled off and the bus could stop only after travelling some more distance from the said tree. The said facts give rise to a presumption that the accident was caused by the negligence of the driver. <NAME>, L. J., in <NAME> v. <ORG> (1) neatly summarizes the principles applicable as to onus of proof in the following short propositions:

"(i) If the defendants' omnibus leaves the road and falls down an embankment, and this without more is proved, then the res ipsa loquitur, there is a presumption that the event is caused by negligence on the part of the defendants, and the plaintiff succeeds unless the defendants can rebut this pre- sumption. (ii) It is no rebuttal for the defendants to show, again without more, that the immediate cause of the omnibus leaving the road is a tyre-burst, since a tyre-burst per se is a neutral event consistent, and equally consistent, with negligence or due diligence on the part of the defendants. When a balance has been tilted one way, you cannot redress it by adding an equal weight to each scale. The depressed scale will remain down. This is the effect of the decision in <NAME> v. <ORG>, (2), where not a tyre-

burst but a skid was involved. (iii) To displace the presumption, the defendants must go further and prove (or it must emerge from the evidence as a whole) either (a) that the burst itself was due to a specific cause which does not connote negligence on their part but points to its (1) [1948] 2 All ER. 46o, 471.

(2) [1942] 1 K.B. 152.

absence as more probable, or (b) if they can point to no such specific cause, that they used all reasonable care in and about the management of their tyres."

The same principles have been restated in Halsbury's Laws of England, 2nd Edn., Vol. 23, at p. 671, para 956, thus:

"An exception to the general rule that the burden of proof of the alleged negligence is in the first instance on the plaintiff occurs wherever the facts already established are such that the proper and natural inference immediately arising from them is that the injury complained of was caused by the defendant's negligence, or where the event charged as negligence tells its own story' of negligence on the part of the defendant, the story so told being clear and unambiguous. To these cases the maxim res ipsa loquitur applies. Where the doctrine applies, a presumption of fault is raised against the defendant, which, if he is to succeed in his defence, must be overcome by contrary evidence, the burden on the defendant being to show how the act complained of could reasonably happen without negligence on his part. Where, therefore, there is a duty on the defendant to exercise care, and the circumstances in which the injury complained of happened are such that with the exercise of the requisite care no risk would in the ordinary course of events ensue, the burden is in the first instance on the defendant to disprove his liability. In such a case, if the injurious agency itself and the surrounding circumstances are all entirely within the defendant's control, the inference is that the defendant is liable, and this inference is strengthened if the injurious agency is inanimate."

The said principles directly apply to the present case. Here, the events happened tell their own story and there is a presumption that the accident was caused by negligence on the part of the appellants. But it is ,said that this presumption was rebutted by proof that the accident was due to the rear central bolt of the bus suddenly giving way. <ORG>, after considering the relevant evidence, held that it was not possible to hold that the accident was caused by the break in the bolt. We have gone through the evidence and we do not see any flaw in that conclusion.

The scope of the liability of a master for the negligence of his servant has been succinctly stated by Baron <NAME> in <NAME> v. <NAME> (1) thus:

'The master is only liable where the servant is acting in the course of his employment. If he was going out of his way, against his master's implied commands, when driving on his master's business, he will make his master liable; but if he was going on a frolic of his own, without being at all on his master's business, the master will not be liable."

Again, in <NAME> v. <NAME> (2) <NAME>, L.C.J., says:

"The true rule is that the master is only responsible so long as the servant can be said to be doing the act, in the doing of which he is guilty of negligence, in the course of his employment as servant."

In the same case, Lush, J., said:

"The question in all such cases as the present is whether the servant was doing that which the master employed him to do."

In the present case, admittedly, on account of the negligence of the driver in the course of his employment the said accident happened, and, therefore, the appellants are liable therefore.

The next question is whether the courts below were right in awarding compensation of Rs. 25,200 for the pecuniary loss unstained by the respondents 2 to 7 by reason of the death of <NAME>, under s. 1 of the Act. Section 1 of the Act reads:

"Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the party who would have been liable if death had (1) (1834) 6 Car. & P. 501 ; 172 E.R. 1338.

(2) (1869) L.R. 4 Q.B. 476.

not ensued shall be liable to an action or suit for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony or other crime.

Every such action or suit shall be for the benefit of the wife, husband, parent and child, if any of the person whose death shall have been so caused, and shall be brought by and in the name of the executor, administrator or representative of the person deceased; and in every such action the <ORG> may give such damages as it may think proportioned to the loss resulting from such death to the parties respectively, for whom and for whose benefit such action shall be brought; and the amount so recovered, after deducing all costs and expenses, including the costs not recovered from the Defendant, shall be divided amongst the before mentioned parties, or any of them, in such shares as the <ORG> by its judgment or decree shall direct."

This section is in substance a reproduction of the English Fatal Accidents Act s, 9 and 10 Vict. ch. 93, known as the Lord Campbell's Acts. The scope of the corresponding provisions of the English Fatal Accidents Act s has been discussed by <ORG> in <NAME> v. <ORG>). There, Lord <NAME> of Killowen stated the general rule at p. 606 thus:

"The general rule which has always prevailed in regard to the assessment of damages under the, Fatal Accidents Act s is well settled, namely, that any benefit accruing to a dependent by reason of the relevant death must be taken into account. Under those Acts the balance of loss and gain to a dependent by the death must be ascertained, the position of each dependent being considered separately."

Lord <NAME> elaborated the theme further thus at p. 611:

"The damages are to be based on the reasonable expectation of pecuniary benefit or benefit reducible (1) [1942] A.C. 601.

to money value. In assessing the damages all circumstances which may be legitimately Pleaded in diminution of the damages must be considered...... The actual pecuniary loss of each individual entitled to sue can only be ascertained by balancing, on the one band, the loss to him of the future pecuniary benefit, and, on the other, any pecuniary advantage which from whatever source comes to him by reason of the death."

The same principle was restated with force and clarity by Viscount <NAME> in <NAME> v. <ORG> (1). There, the learned Lord was considering the analogous provisions of the British Columbia legislation, and he put the principle thus at p. 614:

"The claim for damages in the present case falls under two separate heads. First, if the deceased had not been killed, but had eked ou t the full span of life to which in the absence of the accident he could reasonably have looked forward, what sums during that period would he probably have applied out of his income to the maintenance of his wife and family?"

Viscount <NAME> then proceeded to lay down the mode of estimating the damages under the first head. According to him, at first the deceased man's expectation of life has to be estimated having regard to his age, bodily health and the possibility of premature determination of his life by later accidents; secondly, the amount required for the future pro- vision of his wife shall be estimated having regard to the amounts he used to spend on her during his lifetime, and other circumstances; thirdly, the estimated annual sum is multiplied by the number of years of the man's estimated span of life., and the said amount must be discounted so as to arrive at the equivalent in the form of a lump sum payable on his death; fourthly, further deductions must be made for the benefit accruing to the widow from the acceleration of her interest in his estate; and, fifthly, further amounts have to be deducted for the possibility of the (1) [1951] A.C. 601.

<NAME>

wife dying earlier if the husband had lived the full span of life; and it should also be taken into account that there is the possibility of the widow remarrying much to the improvement of her financial position. It would be seen from the said mode of estimation that many imponderable enter into the calculation. Therefore, the actual extent of the pecuniary loss to the respondents may depend upon data which cannot be ascertained accurately, but must necessarily be an estimate, or even partly a conjecture. Shortly stated, the general principle is that the pecuniary loss can be ascertained only by balancing on the one hand the loss to the claimants of the future pecuniary benefit and on the other any pecuniary advantage which from whatever source comes to them by reason of the death, that is, the balance of loss and gain to a dependent by the death must be ascer- tained.

The burden is certainly on the plaintiffs to establish the extent of their loss. Both the courts below found, on the evidence the following facts: (1) The family owned a building worth Rs. 2,00,000 at <ORG>, and 120 acres of nanja land worth about Rs. 1,000 per acre. (2) It was engaged in the business of manufacturing Indian patent medicines from drugs and had been running <ORG> at <ORG> for a period of 30 years and had also branches in Colombo and Madras. (3) <NAME> studied in <ORG> for two years and thereafter set up his own practice as a doctor, having registered himself as a practitioner in 1940. (4) He took over the management of the family <ORG> at <ORG>. (5) <NAME> was earning in addition Rs. 200 to Rs. 250 per month in his private practice. (6) He had a status in life, being Municipal Councillor of <ORG> and sometimes its Vice-Chairman, and was maintaining a fairly good standard of life and owned motor cars. (7) He was aged 34 years at the time of his death and, therefore had a reasonably long span of life before him, if the accident had not taken place. On the said findings, <ORG> summarized the position thus:

age 34 carrying on business as a Doctor, with reasonable prospects of improving in his business. He was living in comfort and by his early death plaintiff,-, 2 to 7 have lost their prospects of education, position in society and even possible provision in their favour. Under the circumstances, the award of Rs. 25,000 as damages must be accepted as quite reasonable."

When the courts below have, on relevant material placed before them, ascertained the said amount as damages under the first head, we cannot in second appeal disturb the said finding except for compelling reasons. Assuming that <NAME> had not died, he would have spent, having regard to his means and status in life, a minimum of Rs. 250 on respondents 2 to 7; and his income, as indicated by the evidence, would certainly be more than that amount. The yearly expenditure he had to incur on the members of the family would have been about Rs. 3,000 and the sum of Rs. 25,200 would represent the said expenditure for just over 8 years.

In the circumstances, the balance of loss and gain to the dependents by, the death of <NAME>, in the sense stated by Lord <NAME> and Viscount <NAME>, could not be less than Rs. 25,200; indeed, having regard to the circumstances of the case, it is a moderate sum; it is rather a conservative estimate. We, therefore, accept that figure as representing the damages for respondents 2 to 7 in respect of their claim under the head of pecuniary loss to them by the death of <NAME>.

The last, contention raises an interesting point. Under s. 2 of the Act the respondents 2 to 7 were awarded Rs. 5,000 as damages for loss of expectation of life. It was contended that this amount should go in reduction of Rs. 25,200 awarded under s. 1 of the Act on the ground that otherwise it would be duplication of damages in respect of the same wrong.

The second proviso to s. 2 of the Act reads:

"Provided that in any such action or suit, the executor, administrator or representative of the deceased may insert a claim for and recover any pecuniary loss to the estate of the deceased occasioned by such wrongful act, neglect or default, which sum, when recovered, shall be deemed part of the assets of the estate of the deceased."

While s. 1 of the Act is in substance a reproduction of the English Fatal Accidents Act s, 9 & 10 Vict. Ch. 93, known as the Lord Campbell's Acts, s. 2 thereof corresponds to a provision enacted in England by the Law Reform (Miscellaneous Provision) Act, 1934. The cause of action under s. 1 and that under s. 2 are different. While under s. 1 damages are recoverable for the benefit of the persons mentioned therein, under s. 2 compensation goes to the benefit of the estate; whereas under s. 1 damages are payable in respect of loss sustained by the persons mentioned therein, under s. 2 damages can be claimed inter alia for loss of expectation of life. Though in some cases parties that are entitled to compensation under both the sections may happen to be the same persons, they need not necessarily be so; persons entitled to benefit under s. 1 may be different, from those claiming under s. 2 . Prima facie as the two claims are to be based upon different causes of action, the claimants, whether the same or different, would be entitled to recover compensation separately under both the heads. But a difficulty may arise where the party claiming compensation under both the heads is the same and the claims under both the heads synchronize in respect of a particular sub-head or in respect of the entire head. In that situation, the question is whether a party would be entitled to recover damages twice over in respect of the same wrong. In England this question came under judicial scrutiny in <NAME> v. <NAME> (1). There the question was whether and to what extent deductions would have to be made in giving compensation both under the English Fatal Accidents Act s and the Law Reform (Miscellaneous Provision) Act, 1934. A young woman called <NAME> was killed in an accident. Her father sued for damages under both the Acts. It was contended that as he got damages for personal loss, he could not be (1)  A.C. 826, 835.

awarded once again compensation for the loss of expectation of life. Though in that case it was held that the father was entitled under both the Acts, Lord <NAME> made the following observations, which are appropriate to the present case:

"I should add that I see no difficulty as to the alleged duplication of damages under the Act of 1934 and the Fatal Accidents Act s. If those who benefit under the last mentioned Acts also benefit under the will or intestacy of the deceased personally, the damages under those Acts will be affected. If they do not, there seems no reason why an increase in the deceased's estate in which they take no share should ,affect the measure of damages to which they are entitled under the Act."

A similar question arose in <NAME> v. <NAME> There, Mrs. <NAME> was killed in an accident and her husband sued for damages under both the Acts. It was held that, as the husband was the claimant under both the Acts, credit should be given in assessing the damages under the Fatal Accidents Act s, for what was given to him under the Law Reform Act, 1934. So too, in <NAME> v. <NAME> (2), where the parents of an infant, who had been negligently killed in an accident, claimed damages under both the Acts, <NAME>, L. J., reaffirmed the view that where the parties who would benefit from the damages awarded under the Fatal Accidents Act s were the same as those who would benefit from the damages awarded under the Law Reform Act, the damages under the Fatal Accidents Act s must be reduced by the amount given as loss under the Law Reform Act. Finally the same view has been reaffirmed and restated with clarity in <NAME> v. <ORG> (3). There Lord <NAME> described the nature of the two heads thus at p. 610:

"The rights of action in the two cases are quite distinct and independent. Under the Law Reform Act the right of action is for the benefit of the deceased's estate; under the Fatal Accidents Act s (1)  1 All. E.R. 31. (2)  2. K.B. 180 (3) (1942) A.C. 601.

the right of action is for the benefit of the deceased's dependents. But, inasmuch as the basis of both causes of action may be the same, namely, negligence of a third party which has caused the deceased's death, it was natural to provide that the rights of action should be without prejudice the one to the other. It is quite a different thing to read the provision as meaning that in assessing damages payable to dependents under the Fatal Accidents Act s no account is to be taken of any benefit which the dependents may indirectly obtain from an award under the Law Reform Act through participation in the deceased's estate.............. it is appro- priate that any benefit taken indirectly by a dependent by way of participation in an award under the Law Reform Act should be taken into account in estimating the damages awarded to that dependent under the Fatal Accidents Act s."

Lord Wright addressed himself to the same question and answered it at p. 614 thus:

"The injury suffered by the individual from the death cannot be computed without reference to the benefit also accruing from the death to the same individual from whatever source."

The principle in its application to the Indian Act has been clearly and succinctly stated by a division bench of <ORG> in Secretary of <ORG> v. <NAME> (1). In that case, Sir <NAME>, C. J., observed at p. 453 thus:

the one is the pecuniary loss to the estate of the deceased resulting from the accident; the other is the pecuniary loss sustained by th e members of his family through his death. The action for the latter is brought by the legal representatives, not for the estate, but as trustees for the relatives beneficially entitled; while the damages for the loss caus- ed to the estate are claimed on behalf of the estate and when recovered form part of the assets of the estate."

An illustration may clarify the position. X is the (1) (1925) I.L.R. 6 Lahore 451.

income of the estate of the deceased, Y is the yearly expenditure incurred by him on his dependents (we will ignore the other expenditure incurred by him). X-Y, i.e., Z, is the amount he saves every year. The capitalised value of the income spent on the dependents, subject to relevant deductions, is the pecuniary loss sustained by the members of his family through his death. The capitalised value of his income, subject to relevant deductions, would be the loss caused to the estate by his death. If the claimants under both the heads are the same, and if they get compen- sation for the entire loss caused to the estate, they cannot claim again under the head of personal loss the capitalised income that might have been spent on them if the deceased were alive. Conversely, if they got compensation under s. 1 , representing the amount that the deceased would have spent on them, if alive, to that extent there should be deduction in their claim under s. 2 of the Act in respect of compensation for the loss caused to the estate. To put it differently, if under s. 1 they got capitalised value of Y, under s. 2 they could get only the capitalised value of Z, for the capitalised value of Y+Z, i.e., X, would be the capitalised value of his entire income.

The law on this branch of the subject may be briefly stated thus: The rights of action under ss. 1 and 2 of the Act are quite distinct and independent. If a person taking benefit under both the sections is the same, he cannot be permitted to recover twice over for the same loss. In awarding damages under both the heads, there shall not be duplication of the same claim, that is, if any part of the compensation representing the loss to the estate goes into the calculation of the personal loss under s. 1 of the Act, that portion shall be excluded in giving compensation under s. 2 and vice versa.

In the instant case, under s. 1 of the Act both the. courts gave compensation to plaintiffs 2 to 7 in a sum of Rs. 25,200. This sum was arrived at by taking into consideration, inter alia, the reasonable provision the deceased, if alive, would have made for them.

Under s. 2 both the courts awarded damages for the loss to the estate in a sum of Rs. 5,000. That figure represents the damages for the mental agony, suffering and loss of expectation of life. There was no duplication in awarding, damages under both the heads. No material has been placed before us to enable us to take a different view in regard to the amount of compensation under s. 2 of the Act. The judgment of <ORG> is correct and the appeal fails and is dismissed with costs.

Appeal dismissed.


<CITATION> .

1. A brief back-drop leads to the short point in issue. Chronic scarcity of accommodation in almost every part of the country has made 'eviction' litigation explosively considerable, and the strict protection against ejectment, save upon restricted grounds, has become the policy of the State. Rent Control Legislation to give effect to this policy exists everywhere, and we are concerned with one such in the State of U.P. (U.P. Act 13 of 1972). The legislature found that rent control law had a chilling effect on new building construction, and so, to encourage more building operations, amended the statute to release, from the shackles of legislative restriction, 'new constructions' for a period of ten years. So much so, a landlord who had let out his new building could recover possession without impediment if he instituted such proceeding within ten years of completion. The respondent is a landlady who claims to fill the bill in this setting and seeks to evict the appellant-tenant untrammeled by the provisions of the Act. She has succeeded in both the courts below and the appellant challenges the order as illegal and vitiated by a basic error of approach.

2. We should have made short work of it had there not been the need for this Court to set the sights right in the class of litigation where exemption from the operation of the Act is claimed on the ground that the construction is new and the case is filed within the ten-year moratorium. If the exemption is erroneously liberalised to frustrate the principal measure by failure to stick to basic legal principles, the jurisprudence of rent control may become too jejune to be socially effective. That is why we examine a few fundamentals here in the decisional process of this class of cases.

3. The area of controversy, factual and legal, is small. The respondent purchased shop No. 66 in the city of Jhansi in 1969 from one <NAME> (DW2), occupied the first floor and allowed the appellant, as tenant, to occupy the ground floor in 1970 on a lease deed which recited that the building was erected in 1965. In 1975 the present eviction action was instituted on the basis that the building was new, that the Act did not debar eviction of new constructions put up within ten years of the suit and so a decree was inevitable. The tenant resisted the claim on the plea that the building was constructed 50 years ago. The trial court negatived the defence and decreed eviction and this was upheld by <ORG>.

4. If it were a bare finding of fact we should not have reopened it, but <NAME> argues that fundamental flaws in the understanding of the law have vitiated the decision which, if left uncorrected, will spell a new class of litigation for eviction by easy resort to the 'new construction expedient. Such possible public mischief persuades us to have a closer look at the Act to the extent relevant.

5. <NAME> rightly reminds us that in the normal course the appeal must be dismissed as concluded by findings of fact. But we will probe the matter further to explore whether there is any substance in <NAME> argument of fundamental failure bearing on the legality of the conclusions. The anatomy of the Act is substantially the same as that of other similar legislations. The most important feature we have to notice is the exemption from application of the provisions of the Act for the period of ten years in respect of new constructions. Section 2(2) is relevant in this context and runs as follows :

Except as provided in Sub-section (5) of Section 12 Sub-section (1A) of Section 21 , Sub-section (2) of Section 24 , Sections 24A , 24B , 24C or Sub-section (3) of Section 29 , nothing in this Act shall apply to a building during a period of ten years from the date on which its construction is completed.

xxx xxx xxx Explanation I.-For the purposes of this Sub-section,

(a) The construction of a building shall be deemed to have been completed on the date on which the completion thereof is reported to or otherwise recorded by the local authority having jurisdiction, and in the case of a building subject to assessment, the date on which the first assessment thereof comes into effect, and where the said dates are different, the earliest of the said dates, and in the absence of any such report, record or assessment, the date on which it is actually occupied (not including occupation merely for the purposes of supervising the construction or guarding the building under construction) for the first time :

Provided that there may be different dates of completion of construction in respect of different parts of a building which are either designed as separate units or are occupied separately by the landlord and one or more tenants or by different tenants.

(b) 'construction' includes any new constructions in place of an existing building which has been wholly or substantially demolished;

(c) Where such substantial addition is made to an existing building, that the existing building becomes only a minor part thereof, the whole of the building including the existing building shall be deemed to be constructed on the date of completion of the said addition.

This Sub-section and its construction is decisive of the fate of the appeal. Nothing in the rent control legislation shall apply to a building "during a period of ten years from the date on which its construction is completed." The first thing that falls to be emphasised is that in regard to all buildings the Act applies save where this exemption operates. Therefore, the landlord who seeks exemption must prove that exception. The burden is on him to make out that notwithstanding the rent control legislation, his building is out of its ambit. It is not for the tenant to prove that the building has been constructed beyond a period of ten years. But it is for the landlady to make out that the construction has been completed within ten years of the suit. This is sensible not merely because the statute expressly states so and the setting necessarily implies so, but also because it is the landlady who knows best when the building was completed, and not the tenant. As between the two, the owner of the building must tell the court when the building was constructed, and not the tenant thereof. Speaking generally, it is fair that the onus of establishing the date of construction of the building is squarely laid on the landlord, although in a small category of cases where the landlord is a purchaser from another, he will have to depend on his assignor to prove the fact.

6. Firstly, therefore, we must examine whether the respondent has made out her case for exemption from the operation of the Act based on the vital fact that the building has been completed only within ten years of the suit. The second thing we have to remember is Explanation 1 quoted above. When is a building deemed to have been completed? An analysis of Explanation 1 to Section 2(2) of the U.P. Act indicates :

(1) Where a building has not been assessed, it is the date on which the completion was reported to, or other wise recorded by, the local authority having jurisdiction.

(2) Where a building has been assessed, it is the date on which the first assessment comes into effect.

Provided that if the date on which the completion was reported to, or otherwise recorded by, the local authority is earlier than the date of the first assessment, the date of completion will be such earlier date.

(3) Where there is no report, record or assessment, it is the date of actual occupation for the first time (not being an occupation for the purpose of supervising the construction or guarding the building under construction).

7. It is common case that Shop Nos. 65 and 66 were owned by a common owner, <NAME>, DW2. He sold only Shop No. 66 to the respondent. So, there is no doubt, that there was an existing building, Shop No. 66, long prior to the ten-year period mentioned in the statute. According to the testimony of <NAME>, DW2, the old construction continued, but certain additions and remodelling were done. He had submitted a plan to the local authority indicating the original construction and the proposed additions, and that is marked as Exhibit in the case. This shows the existence of a prior building, the proposal being for addition or partial reconstruction and not for total demolition. If We go by the plan, it is not possible to conclude automatically that there is a new construction. If we go by <NAME> evidence, the owner of the building at the relevant time, we cannot necessarily hold that the existing building has been substantially demolished and reconstructed. Indeed, his evidence is to the effect that the construction such as was made was beyond the 10 year period.

8. Unfortunately, it is not possible for the purchaser-respondent or the tenant-appellant to give direct testimony about the time of the construction or the nature of the construction vis-a-vis Explanation (b) Order (c). The best testimony is the municipal records about the completion of the building and the verification by the municipal authorities as to whether a new construction has come into being or an old construction has been remodeled and, if so, when exactly the completion took effect. The municipal assessment record produced in the court merely state "increased assessment". It may suggest the existence of an assessment which has been increased or it may perhaps be argued that when the building was reconstructed a new assessment was made which was more than the previous assessment and, therefore, was described as increased assessment. The oral evidence in the case, apart from what we have set out, is inconsequential, being second hand testimony. Even the recital in the rent deed that there was a new construction is 1965-66 is by the appellant and the respondent, neither of whom has any direct knowledge about the construction. Of course, an admission by the appellant is evidence against him but an admission is not always conclusive especially in the light of the municipal records such as are available and the burden such as has been laid by the statute.

9. Viewed in this perspective, the failure of the trial court specifically to record when the building was completed and what was the extent of re-building, whether it was a case of total demolition and reconstruction or such extensive additions as to push the existing building into a minor part, becomes fatal. These basic issues have failed to receive any attention from the courts below. A finding recorded on speculative basis is no finding and that is the fate of the holding in the present case.

10. We do not want to dwell or the evidence in greater detail because we propose to remit the case to the trial court (<ORG>, Jhansi). It is quite conceivable that the municipal records bearing on the completion of the construction may throw conclusive light, whatever might have been the original proposal in the plan submitted. It is perfectly possible that on a view of the earlier construction, vis-a-vis the completed new building, the former may form but a small part. It may also be that the implication of the expression "increased assessment" may be explained with reference to earlier assessment records in the municipality. Moreover, whenever a new building is completed, a report has statutorily to be made and only on a completion survey and certificate, occupation is ordinarily permitted. These records must also be available in the office of the local authority. The statute makes it clear that reliance upon the municipal records, rather than on the lips of witnesses, is indicated to determine the date of completion and the nature of the construction. This statutory guideline has been wholly overlooked and the burden lying on the landlord has not been appreciated. The result is that the eviction order has to be demolished.

11. It may still be open to the landlady-respondent to make out his case by producing better municipal evidence in the light of what we have indicated. We do not wish to deny the landlady this opportunity because the trial court has not approached the problem from the correct legal angle. We set aside the judgment of the courts below and remit the case for hearing to the trial court. The trial court will give an opportunity to both sides to adduce fresh evidence, documentary and oral, to make out the ground of exemption from the application of the Act. Of course, when the entire evidence is before the court, the onus of proof will play a lesser role.

12. Before parting with the case, we wish to notice a submission made by <NAME> that the landlady's son was an unemployed engineer who needed the premises for personal requirement. Even if the Act applies, it is open to the landlady to make out any of the grounds under the Act for eviction. To avoid prolixity and delay of the proceedings, we permit the trial court to allow the landlady, if she applies in that behalf, to plead on an alternative basis, for eviction on any of the specified grounds under the Act.

13. The appeal is allowed and the case remitted to <ORG> District Judge, Jhansi for fresh disposal in the light of the observations made above.


JUDGMENT <NAME>, J.

1. The following question has been referred at the instance of the assessee :

"Whether, on the facts and in the circumstance of the case, the <ORG> was right in holding that the profit derived from the sales of import entitlements would not be entitled to relief under section 80E of the Income-tax Act, 1961 ?"

2. The assessee is a priority industry, which is entitled to a rebate under s. 80E of the I.T. Act, 1961. It manufactures forgings and stampings, which are automobile parts. In determining the income on which the rebate under s. 80E of the Act is available, the <ORG> excluded a sum of Rs. 1,70,245, being the profit on sales of import entitlements. The assessee obtained the entitlements on the basis of the export performance. The <ORG> excluded the same on the ground that this did not have any relation to the manufacturing operations of the assessee. This view was confirmed by the <ORG> and the <ORG>. Under s. 80E , in order to get the benefit of deduction, the profits and gains should be attributable to the business of manufacture or sale. The <ORG> held that in order to make profits "attributable" to the manufacturing activity, there should be some direct nexus with the profit earned and the manufacturing activity. As in the view of the <ORG>, there is no such nexus in the profit earned by sale of import entitlement, for the purpose of the relief under s. 80E the profits on sale of import entitlements had to be excluded. The Supreme Court in <CITATION> , while interpreting the words "attributable to" occurring in s. 80E , observed as follows (p. 93) :

"As regards the aspect emerging from the expression 'attributable to' occurring in the phrase profits and gains attributable to the business of' the specified industry (here generation and distribution of electricity) on which the learned Solicitor-General relied, it will be pertinent to observe that the legislature has deliberately used the expression 'attributable to' and not the expression 'derived from'. It cannot be disputed that the expression 'attributable to' is certainly wider in import than the expression 'derived from'. Had the expression 'derived from' been used, it could have with some force been contended that a balancing charge arising from the sale of old machinery and buildings cannot be regarded as profits and gains derived from the conduct of the business of generation and distribution of electricity. In this connection, it may be pointed out that whenever the legislature wanted to give a restricted meaning in the manner suggested by the learned Solicitor-General, it has used the expression 'derived from', as, for instance, in section 80J . In our view, since the expression of wider import namely, 'attributable to', has been used, the legislature intended to cover receipts from sources other than the actual conduct of the business of generation and distribution of electricity."

3. The import entitlement in this case was given to the assessee on the basis of its export of the goods manufactured by them. Certainly, therefore, the import entitlement was directly attributable to the export of goods manufactured and the business of sale of forgings and stampings. A similar question came up for consideration before <ORG> of this court in <CITATION> .) Ltd. (T.C. Nos. 451 and 452 of 1976, dated January 8, 1980)  128 ITR 531. There it was held that the amount of incentive would qualify for the relief under s. 80-I which provisions was similar to s. 80E . The export incentive, thus, being bound up with the manufacture, sale and export, the assessee is entitled to get the relief under s. 80E even in respect of these profits and gains.

4. We, accordingly, answer the reference in the negative and in favour of the assessee. The assessee will be entitled to its costs. Counsel's fee Rs. 500.


ORDER

1. Leave granted.

2. Respondent No. 2 has been served by publication, but has not put in appearance. Service on Respondent No. 1 has been dispensed with at the request of the appellant.

3. Respondent No. 1-<NAME> is the driver of truck No. HYL-765 owned by Respondent No. 2 which was insured with the appellant. Respondent No. 1 after having fallen down from the insured vehicle, approached <ORG> for damages on account of the injury sustained by him in his right leg and other injuries on the body. The Commissioner by his order dated 30.4.1996 allowed the claim and held the insurance company liable to pay the compensation. The Commissioner also held that the insurance company was liable to pay interest as also penalty over and above the principal amount of compensation. The appeal filed thereafter by the insurance company under Section 30 of the Workmen's Compensation Act in <ORG> and Haryana was dismissed on 26.8.1997. It is in these circumstances, the present appeal has been filed.

4. The only question raised before us by the learned Counsel for the appellant is that the Workmen's Compensation Commissioner could not have held the insurance company liable for payment of the amount of penalty under Section 4A(3) of the Workmen's Compensation Act . This question was considered by this Court in <CITATION> . and it was held:

24. As a result of the aforesaid discussion, it must be held that the question posed for our consideration must be answered party in the affirmative and partly in the negative. In other words the insurance company will be liable to meet the claim for compensation along with interest as imposed on the insured employer by the Workmen's Commissioner under the Compensation Act on the conjoint operation of Section 3 and Section 4A Sub-section (3) (a) of the Compensation Act . So far as additional amount of compensation by way of penalty imposed on the insured employer by the Workmen's Commissioner under Section 4A(3)(b) is concerned, however, the insurance company would not remain liable to reimburse the said claim and it would be the liability of the insured employer alone.

5. In view of the above, the appeal is allowed and it is held that the appellant-insurance company is not liable to pay the amount of penalty as determined by <ORG>.


JUDGMENT <NAME> <NAME>

1. This is a Rule obtained on behalf of <NAME>, on the 23rd of April 1925, calling upon the District Magistrate and the opposite party to show cause why the order complained of should not be set aside, or such other order passed in the matter as to this Court might seem fit and proper.

2. The order complained of was made by the learned District Judge of Chittagong, on the 31st of January 1925, whereby the learned Judge directed that criminal proceedings should be instituted against <NAME> and <NAME> for offences under Sections 209 and 466 of the Indian Penal Code, and for abetment of these offences.

3. This Rule deals with the case of <NAME> only. I think it is necessary to mention certain dates. It appears that an application was made to the learned Subordinate Judge for filing a complaint against the petitioner <NAME>. That application was disposed of on the 1st of October 1923. By that time the amendment of the Criminal Procedure Code , created by the Act of 1923, had come into force, and the learned Subordinate Judge declined to make a complaint under Section 476 of the Code of Criminal Procedure as amended.

4. There was an appeal to the District Judge by the complainant. That was filed on the 7th of August 1924. It was not disposed of until the 31st of January 1925, by the learned District Judge, when, as I have already stated, the appeal was allowed, and the learned Judge decided that criminal proceedings should be instituted against <NAME> for the offences which I have already mentioned.

5. The point upon which the learned Advocate, who appeared for the petitioner, relied was that the appeal, to the learned Judge was out of time, and the learned Judge had no jurisdiction to entertain the appeal and to make the order. This point was taken before the learned Judge apparently, for he said as follows: "It is urged in his case" (that is the case of <NAME>) "that the appeal is barred by time as the Subordinate Judge passed orders, on the 1st of October 1923, that he would not proceed against respondents 2 and 3. I do not think that I am bound by any rule of limitation in a case of this kind. When an offence in connection with the administration of civil justice comes to the notice of the District Judge, it is open to him to lodge a complaint in <ORG> although a subordinate <ORG> may not have thought it necessary to take "action". The learned Judge then proceeded to say that the case was of such gravity that he would be failing in his duty if he did not institute a complaints

6. With much respect to the learned Judge I am of opinion that the provisions of the material sections do not support the conclusion at which he arrived.

7. Section 476 of the Code of Criminal Procedure . deals with the procedure which is to be adopted in cases referred to in Section 195 , Sub-section (a) Clause (b) or Clause (c), by a <ORG>, with regard to offences which appear to have been committed in or in relation to a proceeding in that <ORG>; and Section 476A confers certain powers upon a Superior <ORG>, where the Subordinate <ORG> has omitted to take action. It is desirable to refer to the terms of the section, which are as follows:

476A. "<ORG> may complain where <ORG> has" omitted to do so.---The power conferred on Civil, Revenue and Criminal "Courts by Section 476 , Sub-section (1), may be exercised, in respect of any "offence referred to therein and alleged to have been committed in or in relation to any proceeding in any such Court, by the Court to which 41 such former Court is subordinate within the meaning of Section 195 , Sub-section (3), in any case in which such former Court has neither made a complaint under Section 476 in respect of such offence, nor rejected and application for the making of such complaint; and, where the <ORG> makes such complaint, the provisions of Section 476 shall apply accordingly."

8. In my judgment that section does not apply to this case, because there was an application made to the learned Subordinate Judge, and the learned Subordinate Judge rejected the application for the making of the complaint.

9. The next Section 476B gives certain rights of appeal not only to the person against whom a complaint has been directed, but also to the person whose application for a complaint has been rejected. The words of the section are as follows:

476-B. "Appeals.---Any person on whose application <ORG> has refused to make a complaint under Section 476 or Section 476A , or against whom such a complaint has been made, may appeal to the Court to which such former Court is subordinate within the meaning of Section 195 , Sub-section (3), and <ORG> may thereupon, after notice to the parties concerned, direct the withdrawal of the complaint or, as the case may he, itself make the complaint which <ORG> might have made under Section 476 , and if it makes such complaint, the provisions of that section shall apply accordingly.

10. Therefore, it appears to me that the scheme of the sections is that, if <ORG> has neither made a complaint under Section 476 nor rejected an application for the making of a complaint, then <ORG> may take action and make a complaint. But where, as in this case, <ORG> has rejected the application for the making of such complaint, then the procedure, which is contemplated by the Code , is by way of an appeal to <ORG>.

11. This matter came before the learned District Judge by way of appeal, and, in view of the abovementioned sections, the learned District Judge, in my judgment, should have considered whether the appeal was filed within the time specified.

12. The article in the Limitation Act which applies to this matter is Article 154 , and the material section of the Act is Section 3 , which provides that "subject to" the provisions contained in Sections 4 to 25 (inclusive), every suit instituted, appeal preferred, and application made, after the period of limitation prescribed therefor by the first schedule., shall be dismissed, although limitation has not been set up as a defence".

13. Under Article 154 the period of limitation for an "appeal under the Code of Criminal Procedure, 1898 to any Court other than a High Court" is "thirty days", and the time from which the period begins to-run is the date of the sentence or order appealed "from ".

14. It is, therefore, clear that, as the order appealed from was made on the 1st of October 1923, and the appeal was not filed till the 7th of August 1924, the appeal was out of time.

15. This Rule, therefore, must be made absolute, and the order of the learned District Judge of the 31st January 1925, directing criminal proceedings to be instituted against <NAME>, must be set aside.

16. No order need be made as regards the appeal (No. 210 of 1925) in connection with the same matter.

<NAME>

17. I agree.


<NAME>, J.

1. In execution of a decree, a sale was held on June 24, 1922, which was confirmed on July 25, 1922.. An application to aside the sale was made and an order passed setting aside the sale on December 17, 1923- There was an appeal to the District Judge, a second appeal to <ORG>, and a Letters Patent Appeal from the judgment in second appeal. All these appeals to which the decree-holder and the auction-purchaser were parties were dismissed; the first appeal on November 12, 192t, the second appeal on February 21, 1928, and the Letters Patent Appeal on September 13, 1929. The present application was put in under Order XXI, Rule 93, by the auction-purchaser for refund of the purchase money, as the sale had been set aside. This was on August 29, 1932. The question arises whether this application, is barred by limitation, which would depend on whether, as contended by the decree holder, three years are allowed from the date of setting aside the sale or, as contended by the auction-purchaser, three years from the dismissal of the Letters Patent Appeal on September 13, 1929. The District Munsif of <ORG> held that the application was in time. Against that finding the decree-holder preferred a revision petition to this Court (C.R.P. No. 308 of 1933) and at the same time appealed to the District Judge. The District Judge transferred the appeal to the Subordinate Judge, who held that the application was barred and dismissed the application. Against that finding this appeal (C. M.S.A. No. 132. of 1934) has been preferred and this C.M.S. A. and C.R.P. No. 306 of 1933 have come on for hearing together.

2. One of the questions for decision is whether an appeal lay against the order passed under Order XXI, Rule 93, by the District Munsif ordering refund of the purchase money. On behalf of the appellant three cases have been quoted which directly bear on this question. The first is <CITATION> 3 LW 105 : 33 Iad. Cas. 235 : AIR 1917 Mad. 217 : (1916) 1 MWN 109, in which <NAME> and <NAME>, JJ. held that in an application under Order XXI, Rule 93, no appeal lay. Another case of this <ORG> referred to is <NAME> v. <NAME> 9 M 437,' which was decided similarly. In both these cases no argument was adduced and I doubt whether they are any longer good law; for, they seem to have been decided on the assumption that an auction-purchaser is a stranger to the suit and that any point that arises between him and the parties to the suit did not therefore fall within the scope of Section 47. There can be no doubt from a very large number of cases decided in this <ORG> and in other High <ORG>s that the auction-purchaser can be looked upon as a representative of a judgment-debtor or decree-holder and, further, that when there is a matter in dispute between the decree-holder and the judgment-debtor, it makes no difference that the actual application which raises the matter is made by a stranger. The third case referred to is <NAME> v. <NAME> 12 A 397 : AWN 1890, 135, which is to the same effect. There is very little discussion even in that judgment; and the many cases referred to therein show that there was a very considerable conflict of authority on this point before <NAME> v. <NAME> 12 A 397 : AWN 1890, 135, was decided. That case is certainly no longer good law in Allahabad: for a Full Bench of the Allahabad High <ORG> has given a definite finding to the contrary in <CITATION> 45 A 369 : 74 Ind. Cas. 873 : AIR 1923 All 394 : 21 ALJ 228.

3. On the other side, there is no direct decision on this point excepting <CITATION> 45 A 369 : 74 Ind. Cas. 873 : AIR 1923 All 394 : 21 ALJ 228, but a number of cases have been quoted in which it has been pointed out that matters in dispute between the auction purcaaser and the parties to the suit come properly under Section 47, Civil Procedure Code, it they relate to the execution, discharge, and satisfaction of the decree. <CITATION> 43 M 107 : 54 Ind. Cas. 209 : AIR 1920 Mad. 324 : 28 MLJ 32 : (1910) MWN 881 : 26 MLT 391 (FB), there was a conflict between the auction-purchaser in execution of a money decree, who was a stranger and the auction-purchaser (decree-holder) in execution of a mortgage decree. The stranger auction-purchaser contended that he was a purchaser for value without knowledge of the mortgage, whereas the decree-holder purchaser contended that the purchase was made lis pendens and was therefore not binding on him. It was- there held that the auction-purchaser was a representative of the judgment-debtor. The question whether the matter arose m execution was not decided by the <ORG>, as a definite finding that it did so arise had been given by the referring Judges. The scope of <CITATION> 43 M 107 : 54 Ind. Cas. 209 : AIR 1920 Mad. 324 : 28 MLJ 32 : (1910) MWN 881 : 26 MLT 391 (FB), was explained very fully in the judgment of <NAME>, J. in <CITATION> 41 MLJ 120 : 63 Ind Cas. 200 : AIR 1921 Mad. 420 : 14 LW 92 : (1921) MWN 491. There, the judgment-debtor, in a separate suit, contended that the auction-purchaser had trespassed on some of his lands which had not been sold: but the <ORG> found that although the lands in question were not the subject-matter of the mortgage or of the decree and were not even sold: yet the <NAME> had by mistake actually delivered them to the auction-purchaser and that there was no trespass. It was held, following the <ORG> case, that this was a dispute in which the judgment-debtor and the decree-holder were adversely interested and that it did not matter that it was the auction-purchaser with whom the judgment-debtor was actually contending. It was therefore held that the judgment-debtor should have raised this matter in execution and that a separate suit did. not lie. <CITATION> 65 MLJ 253 : 143 Ind. Cas 854 : AIR 1933 Mad. 598 : 56 M 808 : Ind. Rul. (1933) Mad 339 : 38 LW 138 : (1933) MWN 1081, there was a sale: but before confirmation had been ordered, the decree itself was set aside in appeal. The sale was confirmed and an application was then put in to set aside the sale under Sections 47,151 and Order XXI, Rule 89. It was held that Order XXI, Rule 89, did not apply; and the same test was applied by <NAME> in this case as was applied in <CITATION> 41 MLJ 120 : 63 Ind Cas. 200 : AIR 1921 Mad. 420 : 14 LW 92 : (1921) MWN 491, whether the judgment-debtor and the decree-holder were adversely interested in the point in dispute. It was held that they were and that therefore Section 47 did apply and the matter could be gone into in execution It is not difficult, 1 think, to distinguish these three cases from the present case-for in all three of them it was very clear that the matters in dispute did arise in execution. It is, however, argued that in the present case the dispute is one relating to the discharge and satisfaction of the decree: because if the auction purchaser succeeds, the decree would be un-satisfied; whereas if he fails the deeree-holder will have retained possession of the money and the decree will be satisfied. This seem to be the view taken in <CITATION> 45 A 369 : 74 Ind. Cas. 873 : AIR 1923 All 394 : 21 ALJ 228. After approving the decision of the <ORG> of the Madras High <ORG> in <CITATION> 43 M 107 : 54 Ind. Cas. 209 : AIR 1920 Mad. 324 : 28 MLJ 32 : (1910) MWN 881 : 26 MLT 391 (FB), that a stranger purchaser at a <ORG> auction is entitled and bound to have any question relating to the satisfaction of the decree decided under Section 47, Civil Procedure Code, the judgment goes on to discuss the <ORG> case, Prosonno Kumar Sanyal v. Kali Das Sanyal 19 C 683 : 19 IA 166, 6 Sar. 209 (PC), in which their Lordships remarked that <ORG>s in India were right in not placing too narrow a construction on the language of Section 244 (the present Section 47). It then refers to a recent decision of the same <ORG> in <NAME> v. <NAME> 44 A 266 : 65 Ind. cas. 813 : AIR 1922 All. 200 : 20 ALJ 105, with approval. The authority of this ruling is weakened by the fact that the Judges were undoubtedly influenced by the equities of the case before them; for they say:

We are entitled to treat this application as coming within the provisions of that section. Even if we were not so satisfied, we should have been,pre-pared to grant the relief asked for on the analogy of Section 144, in exercise of our inherent power under Section 151 of the Code. There is admittedly no question outstanding between the parties except that which has been decided in this appeal, and to require the question to be now tried out in a regular suit would be merely to put the parties to unnecessary expense.

4. However, a very definite finding has been given, and it is incumbent on me to give it the very greatest respect. Apart from <CITATION> 45 A 369 : 74 Ind. Cas. 873 : AIR 1923 All 394 : 21 ALJ 228, this question does seem to have been left in some uncertainty; but on a general examination of the current of cases, bearing on the interpretation of Section 47, there is certainly a very strong tendency to give it a wide application and to bring within its scope questions arising between the parties to the suit and the auction-purchaser. As has been pointed above, the matter now in dispute does, to some extent, relate to the discharge and satisfaction of the decree. I therefore find that an appeal and second appeal do lie.

5. When this appeal first came' up for hearing, it was admitted that the Article of the Limitation Act to be applied; was 181 but the learned Advocate for the auction-purchaser now suggests that the. appropriate Article would be 182. There is no direct authority, but the matter has been argued on the analogy of an application under Order XXI, Rule 93, Civil Procedure Code, to an application under Section 144, Civil Procedure Code, for restitution. There has been a considerable conflict of authority whether applications for restitution are governed by Article 181 or Article 182 , but the weight of authority is that they are governed by Article 181. Full Benches of the Allahabad and Patna <ORG> have said so and the question has been much discussed in Calcutta, where the same conclusion was reached.

6. However, there is authority in Madras for the position that applications under Section 144 relate to execution and that Article 182 therefore, applies. The leading Madras case is <NAME> v. Chockalingam 40 M 780 : 38 Ind. Cas. 806 : AIR 1917 Mad. 185 : 5 LW 267 and the reason given is this:

The language of Section 583 of the old Code was not wide enough to cover all cases of benefits arising from the reversal of a decree being fully realized by the successful party. Apart from this change, we see no ground for holding that <ORG> intended to make any departure in the procedure by which restitution is to be obtained. Under the old Code restitution was by way of execution: see <CITATION> 31 A 551 : 3 Ind. Cas 798 : 13 OC 180 : 36 IA 197 : 10 CLJ 257 : 11 Bom.LR 1200 : 6 MLT 303 : 14 CWN 55 : 19 MLJ 599 (PC). The same rule applies to similar applications under the new Code. The language of Section 47 of the Code would cover all cases of restitution.

7. So that the reason why <ORG>s in Madras have followed <NAME> v. <NAME> 40 M 780 : 38 Ind. Cas. 806 : AIR 1917 Mad. 185 : 5 LW 267 is that restitution was considered to be by way of execution under the old Code and that no change was made in the new Code. Even apart from that, it is not difficult to see that restitution does arise by way of execution: for in executing the decree of the <ORG> which reverses a decree of a lower <ORG>, account has necessarily to be taken of any changes in the positions of the parties that have taken place since the passing of the decree that has been reversed, For example, if one <ORG> states that A should hand over possession to B and he does so in execution and the Appellate <ORG> states that possession should be with A, it is in execution of the Appellate <ORG> decree that possession is given back to A by B. It is difficult to apply similar reasoning to an application under Order XXI, Rule 93. Article 182 sets out the period of limitation for the execution of a decree or order but an auction-purchaser who applies for the return of the purchase money is certainly not attempting to execute any decree or order. Order XXI. Rule 93, merely gives the auction-purchaser an equitable relief by way of returning to him the money that he has already paid into <ORG> because of some order passed under Order XXI, Rules 89 to 92, depriving him of land for which he has already paid. Were it not for the provisions of Order XXI, Rule 93, he would be driven to a separate suit. In a recent case decided in this <ORG> by <CITATION> (1931) MWN 1006 an auction-purchaser claimed restitution under Section 144 (and not under Order XXI, Rule 93) by virtue of the fact that the sale was set aside because of a successful application under Order XXI, Rule 63. <NAME>, J. held that Section 144 does not apply only to cases where a decree or order is reversed in appeal, but also where an order is made of no effect by virtue of other proceedings, so that when a claimant became successful in a suit filed under Order XXI, Rule 63, the <ORG> was empowered under Section 144 to put all the parties, including the auction-purchaser, in the same position as they would have been if the claim had been upheld in the first instance. This case is clearly distinguishable from the present one. There are no grounds for holding that Article 182 applies to an application under Order XXI, Rule 93.

8. Assuming as was originally conceded that Article 181 is the provision of the Limitation Act that governs this application, it would certainly follow from a plain reading of Article 181 that time began to run from the date of the passing of the original order setting aside the sale. It is, however, argued, on the analogy of orders passed on applications under Section 144 or for the passing of a final decree, that it is from the date of the decree of the final <ORG> confirming the decree of the first Court that time must be reckoned. That in the case of an application for a final decree time has to be reckoned from the preliminary decree of the final <ORG> has certainly been established beyond all doubt. <ORG> in <CITATION> 6 Pat 24 : 98 Ind. Cas. 499 : AIR 1926 PC 93 : 53 IA 197 : 24 ALJ 765 : (1926) MWN 591 : 44 CLJ 63 : 3 CWN 690 : 24 LW 394 : 7 PLT 575 : 31 CWN 58 : 51 MLJ 781 : 28 Bom. LR 1395 (FB) has approved the remarks made in <CITATION> 39 A 641 : 42 Ind. Cas. 93 : AIR 1917 All 163 : 15 ALJ 734 (SB) to the effect that:

The essential condition to the making of a final decree is the existence of a preliminary decree which has become conclusive between the parties.

and that:

when the <ORG> passed the decree it was open to the plaintiff or the defendant to accept the decree or to appeal. If an. appeal is preferred, the final decree is the decree of <ORG> of final jurisdiction. When that decree is passed, it is that decree and only that which can be made final between the parties.

9. Similar reasoning was adopted by this Court in <CITATION> 44 M 714 : 64 Ind. Cas. 470 : AIR 1921 Mad. 414 : 41 MLJ 117 : 14 LW 180. If there had been no decisions on applications other than those for final decrees, the position of the appellant world have been a strong one. Another group of applications, upon which there has been considerable authority, is that of applications for restitution under Section 144 , which, in the opinion of most of <ORG>, comes within the scope of Article 181. As has already been pointed out, an application for restitution can be looked upon as one arising in execution of a decree and some Judges while holding that Article 181 applied, have nevertheless been of opinion than such an application was akin to one in execution and so held, on the analogy of Article 182 , that the <ORG> must have intended that where there were appallate decrees the decree of the final <ORG> was the decree from which time should be calculated. In view of the fact that Article 182 expressly lays down that time should be reckoned from the date of the last decree whereas Article 181 does not Bay so, it is rather difficult to argue by analogy from Article 182 to Article 181. The main current of authority on this point is undoubtedly to the effect that time does run from the date of the first decree. The matter was very fully considered by a Full Bench of <ORG> in <NAME> v. <NAME> 57 A 26 : 150 Ind. Cas. 1096 : AIR 1934 All. 626 : (1934) AIJ 503 : 7 RA 65 and the majority of the Judges found themselves unable to accept the argument that the proceedings were akin to execution proceedings and that the same principle that time should be reckoned from the date of the final <ORG> decree should be followed. <ORG> has consistently held the same view. In <NAME> v. <NAME> 11 R 275 : 149 Ind. Cas. 889 : AIR 1933 Rang. 180 : 6 R Rang.337 a contrary view was held. <CITATION> 7 Pat. 794 : 114 Ind. Cas. 476 : AIR 1928 Pat. 598 : 10 PLT 49 : Ind. Rul. (1929) Pat. 156, was there referred to and the opinion was expressed that it was difficult to see in what way an application for the passing of a final decree differed in this respect in principle from an application for restitution. If it was the operative decree of the final <ORG> that had to be taken into account in reckoning the time allowed for applying for a final decree, then for the same reason it would be the decree of the final Court of Appeal that should be taken into account in reckoning the time for restitution proceedings. Even if this reasoning is valid, it is very difficult to see how a mere application to return purchase money can be assimilated to an application for the passing of a final decree or even to one for restitution of the nature of an execution of a decree.

10. Cases dealing with certain other applications seem to me to be more analogous to the present application for a refund of purchase money. <CITATION> 46 C 670 : 50 Ind. Cas. 444 : AIR 1918 PC 151 : 46 IA 52 : 17 ALJ 514 : 36 MLJ 557 : 23 CWN 721 : 21 Bom.LR 632 : (1919) MWN 258 : 30 CLJ 71 : 26 MLT 131 : 10 LW 416 (PC) the provision of the Limitation Act applied was Article 97 '' for money paid upon an existing consideration which afterwards fails". There the same question arose as to whether time had to be reckoned from the date of the decree of the lower Court or from the date of the decree of <ORG> which confirmed the judgment of the lower Court. Their Lordships there pointed out that as in India an original decree is not suspended by the presentation of an appeal nor is its operation interrupted when the decree on appeal is one of dismissal, and that as consideration failed at the date of the first decree, the mere fact that an appeal had been filed did not suspend the cause of action and that throughout the pendency of the proceedings in <ORG>s time was running against the plaintiff. This case is of very great importance and has been discussed in all the cases relating to applications for restitution whichever way Courts have eventually decided. It has been taken as an authority by the Allahabad and Calcutta <ORG> with regard to restitution proceedings on the ground that as the section clearly says that the period of 'limitation under Article 181 is three years from the time when the right to apply accrues, time must be calculated from the date on which the right accrued, because the cause of action is not interrupted by the subsequent filing of an appeal. <CITATION> AIR 1933 Cal. 422 : 144 Ind. Cas. 150 : Ind. Rul. (1933) Cal. 517 a sale was set aside and money refunded to the auction-purchaser. The decree-holder appealed but the sale was confirmed. A second appeal was filed which was also dismissed. Another judgment-debtor who was not a party to the appeals then filed a suit for the return of the money which had been drawn by the auction-purchaser. The suit was filed more than three years from the date of the original decree but less than three years from the date of the appellate decree. In that case the Judges felt themselves bound by the <ORG> decision just referred to. They say that:

In construing the provisions of the Limitation Act , equitable considerations are out of place and the strict grammatical meaning of the words is the only safe guide. In this view we are of opinion that the right to apply accrued as soon as the order of the District Judge was made in August 1925, confirming the sale and that as the present application was not made within three years from that date, it has been rightly held that the application was barred by limitation.

11. No doubt in that case the plaintiff was on a specially weak ground as he had not been a party to the appeals; and this was pointed out in the judgment in this case as being an a fortiori reason for dismissing the suit. There can be no doubt, however, that the case would have been decided against the plaintiff even if those special considerations had not existed. <CITATION> 28 C. 113 an ex parte decree was passed and execution took place. The ex parte decree was subsequently set aside and the judgment-debtor applied for a return of the money realized in execution. There, too, it was held that three years should be calculated from the date of setting aside the ex parte decree. <CITATION> 16 LW 285 : 70 Ind. Cas. 45 : AIR 1923 Mad. 23 : 16 LW 285 : 31 MLT 169 : (1922) MWN 561 it was found that a vendor had no saleable interest. That decree was appealed against but dismissed. A suit was then brought for damages for breach of covenant of title by the vendee and it was held, distinguishing <CITATION> 44 M 714 : 64 Ind. Cas. 470 : AIR 1921 Mad. 414 : 41 MLJ 117 : 14 LW 180 which contained an obiter to the effect that Juscurn Boid v. Pirthi Chand Lal 46 C 670 : 50 Ind. Cas. 444 : AIR 1918 PC 151 : 46 IA 52 : 17 ALJ 514 : 36 MLJ 557 : 23 CWN 721 : 21 Bom.LR 632 : (1919) MWN 258 : 30 CLJ 71 : 26 MLT 131 : 10 LW 416 (PC) had no application to Article 182 and that it would be strange if the basis for calculating the limitation under Article 181 differed from that under Article 182 , that time began to run, from the date of the first decree and not from the date of the appellate decree: Juscurn Boid v. Pirthi Chand Lal 46 C 670 : 50 Ind. Cas. 444 : AIR 1918 PC 151 : 46 IA 52 : 17 ALJ 514 : 36 MLJ 557 : 23 CWN 721 : 21 Bom.LR 632 : (1919) MWN 258 : 30 CLJ 71 : 26 MLT 131 : 10 LW 416 (PC) was there followed. The reason for distinguishing <CITATION> 44 M 714 : 64 Ind. Cas. 470 : AIR 1921 Mad. 414 : 41 MLJ 117 : 14 LW 180 was that applications under Section 144 were of the nature of applications in execution. Although none of the cases immediately referred to above Juscurn Boid v. Pirthi Chand Lal 46 C 670 : 50 Ind. Cas. 444 : AIR 1918 PC 151 : 46 IA 52 : 17 ALJ 514 : 36 MLJ 557 : 23 CWN 721 : 21 Bom.LR 632 : (1919) MWN 258 : 30 CLJ 71 : 26 MLT 131 : 10 LW 416 ( <CITATION> AIR 1933 Cal. 422 : 144 Ind. Cas. 150 : Ind. Rul. (1933) Cal. 517, <CITATION> 28 C 113 and <CITATION> 16 LW 285 : 70 Ind. Cas. 45 : AIR 1923 Mad. 23 : 16 LW 285 : 31 MLT 169 : (1922) MWN 561 deals with precisely the point raised in this application, yet it seems that the same principles have to be applied in this case as in those just quoted. The present application was a simple one under Order XXI, Rule 93, for the return of money and the right to make that application accrued immediately the order setting aside the sale was made. As the cause of, action was not suspended by the filing of the second appeal and <ORG>, time went on running against the appellant throughout the conduct of those proceedings. As pointed out in <CITATION> AIR 1933 Cal. 422 : 144 Ind. Cas. 150 : Ind. Rul. (1933) Cal. 517. <ORG>s are not entitled to import equitable considerations when the <ORG> has made it clear what time should be allowed for filing applications. I, therefore, hold that the present application was out of time. I must mention before concluding a direct decision in favour of the appellant in <NAME> v. Sital Prasad 11 A 372 : AWN 1889,113. That decision was by a Single Judge. It is moreover, a very old one, and it was decided on purely equitable considerations. It seems never to have been quoted or cited before any other <ORG> and its authority at present must be very little.

12. An alternative argument has been put forward on behalf of the appellant that as he joined with the decree-holder in preferring the appeals, he could not at the same time apply for a refund of the purchase money and that it could not be said that the right accrued to the applicant in pursuing the strictly alternative relief to have the sale upheld. The learned Subordinate Judge in appeal disposed of this argument very summarily by saying that he was unable to follow the reasoning and that if the appellant chose to take the matter in appeal, it was his own fault and he did so at his own risk. I quite agree with. what the learned Subordinate Judge has said. The appellant had two remedies and there was no reason why he should not have adopted both at the same time, one being kept pending until the other was disposed of. He had a choice and must accept the consequences of having made the wrong one. In result the appeal is dismissed with costs.

13. The Civil Revision Petition was unnecessary and is dismissed without costs. (Leave granted).


JUDGMENT <NAME>, C.J.

1. These two appeals arise out of an order passed by the Additional Subordinate Judge of Coimbatore on the 23rd November, 1942. No. 269 of 1943 is an appeal against the order itself. No. 213 of 1943 it against the deceree which followed the order and has been filed by the appellant ex abundanti cautela. For reasons which we shall state both the appeals must be dismissed.

2. The appellant is the seventh defendant in a suit for partition of joint family property. The plaintiff is the first respondent. There are altogether fifteen defendants, but only defendants 1 to 8 are really concerned with the suit. The plaint was filed on the 22nd Novemb3r, 1940. In 1942 a settlement was contemplated and in order that it might be brought about, the <ORG> granted several adjournments. On the 31st August, 1942, it was reported that the seventh defendant had consented 'to settle matters" and at his request the case was adjourned until the 7th September, 1942. After the two further adjournments, it was reported to the <ORG> that Sir <NAME> was "settling the matter". On the 5th September, 1942, the plaintiff and defendants 1 to 8 had in writing agreed to refer the matters in dispute to the arbitration of Sir <NAME>. the agreement contained thease statements:

In this suit we consented before the Sub-Judge to abide by the decision or award to be passed by you. Therefore we all of us agreed to abide by the decision or award to be passed by you in this matter and we bind ourselves to file the award in the suit in <ORG> and to obtain a decree in terms thereof.

The document was in Tamil. The translation given here is that made by the Sub-ordinate Judge. The translation to be found in the printed documents is not accurate.

3. In accordance with the agreement, the arbitrator embarked upon the inquiry and on the 7th November, 1942, after hearing the parties, he gave his decision, whereupon the plaintiff and the third defendant applied to the <ORG> to pass a decree in terms of the award. The second and seventh defendants objected. They did not contend that the arbitrator had acted in any way improperly or that the award was invalid. They objected to certain of the directions given and wanted them to be changed. The Subordinate Judge held that the parties ware bound by their agreement and passed a decree in terms of the award. The second defendant was apparently satisfied with this decision as he has not appeared to support the appeal filed by the seventh defendant

4. In <NAME> v. <NAME> (1928) 55 M.L.J. 429 : I.L.R. 51 Mad. 800 (F.B.), a Full Bench of his <ORG> held that an award made in a private arbitration during the tendency of the suit could be treated as an agreement for compromise and on that basis a decree could be passed in the term of the award Mr. <NAME> At on behaIf of the appellant, concedes that if the Arbitration Act of 1940 has not effected an alteration in the law, the judgment of <ORG> will govern this case, which means the dismissal of the appeals. He says, however, that Section 47 of the Arbitration Act precludes an award in a private arbitration being made a decree of the <ORG> unless all the being passed in the terms ther of. Section47 reads as follows:

Subject to the provisions of Section 46 , and save in so far as is otherwise provided by any law for the time being in force, the provisions of this Act shall apply to all arbitrations and to all proceedings thereunder;

Providing that an arbitration award otherwise obtained may with the consent of all the parties interested be taken into consideration as a compromise or adjustment of a suit by any court before which the suit is pending.

Section 46 has no application here and therefore we do not need to set out its pro visions. We are merely concerned with the proviso in Section 47 which plainly indicates that an arbitration award obtained otherwise than under the Act may with the consent of the parties interested in it be regarded as a compromise of a pending suit. There is nothing in the proviso which precludes antecedent consent.

5. Order 23, Rule 3 says that Where it is proved to the satisfaction of the <ORG> that a suit has been adjusted wholly or in part by a lawful agreement or compromise, or whefe the defendant satisfies the plaintiff in respect of the whole or a, part of the subject-matter of the suit, the <ORG> shall order the agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the suit. The proviso to Section 47 leaves this provision of law untouched. In fact it would appear to be likely that it was inserted by the <ORG> in order to allow the <ORG> unfettered action under Order 23, Rule 3.

6. The judgment in <NAME> v. <NAME> (1928) 55 M.L.J. 429 : I.L.R. 51 Mad 800 (F.B.) itself gives the answer to Mr. <NAME>'s argument. It contains this statement:

If an agreement to abide by the decision of an arbitrator can be held to be a compromise, the section is clearly applicable. It has been suggested that a mere agreement to he bound by a future award is not a compromise, whereas an agreement to accept an award that has been made is a compromise. It is difficult to see on what principle parties who agree to accept a certain fixed sum in satisfaction of a claim can be said to compromise that claim, whereas if they agreed to accept a sum whieh is to be fixed by some one else that does not amount to a compromise.

7. There is here clear indication that an agreement to accept a future award can be treated as a compromise in the suit, and in our judgment the Arbitration Act of 1940 in no way alters the position.

8. The appellant was a party to all that happened before the Subordinate Judge. He was a party to the agreement under which Sir <NAME> was to settle the differences between himself and the other members of the family and he does not suggest that the award is in any respect unlawful. He agreed to compromise the suit on the terms of the award to be given by Sir <NAME> and as the case falls within the decision of the Full Bench in <NAME> v. <NAME> (1928) 55 M.L.J. 429 : I.L.R. 51 Mad. 800 (F.B.) he must be held to his agreement. Of course, a party cannot be compelled to accept an award which is unlawful. The agreement to accept an award yet to be made presupposes that it will be a lawful award. Here the award is a lawful one.

9. The appeals are dismissed with costs in C.M.A. No. 269 of 1943. We fix the Advocate's fee at Rs. 100.