Approbate and reprobate barred reopening a sanctioned scheme order after the omission issue had already been raised earlier.

A party that had earlier pressed a claim on the basis of a sanctioned scheme order could not later seek correction by alleging that a property was omitted from the schedule. The court noted that the same issue had already been raised in earlier proceedings and was effectively determined, so the applicant could not reopen it through a fresh application. Even if strict res judicata was not invoked, the claim was barred by approbation and reprobation, by the party's failure to raise the alleged mistake when it had the opportunity, and by delay in asserting correction after the right had become stale. The application was dismissed without costs.

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Issues: Whether the applicant could maintain a fresh application to correct the drawn-up scheme order by contending that the North Mill had been omitted from the schedule, after having earlier asserted in proceedings under Section 11 of the Arbitration and Conciliation Act, 1996 that the same property had already vested in it under the sanctioned scheme.

Analysis: The earlier Section 11 proceedings had squarely raised and decided the question whether the North Mill passed to the applicant under the sanctioned scheme. The applicant had chosen to press its claim on the basis of the drawn-up order as it stood, despite notice from the opposite side that the North Mill was not included in the schedule. The present attempt would effectively reopen a matter that had already been conclusively determined. The Court held that, even if the strict doctrine of res judicata did not apply in terms, the applicant was barred by the principle that a party may not approbate and reprobate, and by its own conduct in failing to raise the alleged mistake when it had the opportunity. The Court also held that a claim to correct a court's mistake cannot be asserted at a belated stage after the right to apply has become stale.

Conclusion: The applicant was precluded from reopening the issue and from seeking correction of the scheme order on the alleged mistake.

Final Conclusion: The application was held to be barred on grounds of prior election of remedy and final determination of the same core issue in earlier proceedings, and it was dismissed without costs.

Ratio Decidendi: A party that has consciously pursued and lost a claim on the basis of a court order cannot later seek to reopen the same issue by alleging that the order was mistaken, where the alleged error was available to be raised earlier and the matter had already been finally adjudicated.

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