GURU CHARAN SARKAR Vs. UMA CHARAN SARKAR

JUDGEMENT

(1.) The only question in this appeal, is whether matters heard and, determined in proceedings under the Second Schedule to the Civil Procedure Code Clause 21 may be re-opened in a subsequent suit between the same parties and brought for the purpose of setting aside the award and the decree following upon the judgment pronounced in accordance therewith.

(2.) We have little difficulty in answering this question in the negative.

(3.) Even under the Civil Procedure Code of 1882 it was held by the Full Bench in the case of Mahomad Wahiduddin v. Haki-man 25 C. 757 : C.W.N. 529 : 13 Ind. Dec. (N.S.) 494 (F.B.) that an order refusing to file an, award was a decree. In Clause 21 of the Second Schedule it is now expressly provided that an order filing an award shall be followed by a judgment and a decree.1 These provisions and the further provisions in Section 26 that a suit may be instituted otherwise than by presentation of a plaint, make it clear that a proceeding under Clause 21 of the Second Schedule is a suit and that a subsequent suit brought for the purpose of re-agitating the matters therein heard and determined is barfed by the provisions of Section 11 of the Code.