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Maganlal Gopaldas Vs. Lalchand Hirachand - Court Judgment

LegalCrystal Citation
SubjectArbitration
CourtMumbai
Decided On
Case NumberFirst Appeal No. 127 of 1905
Judge
Reported in(1907)9BOMLR259
AppellantMaganlal Gopaldas
RespondentLalchand Hirachand
Excerpt:
.....procedure code (act xiv of 1882), section 13- res judicata-reference to arbitration out of court-award-application to file the award-decree in terms of the award-suit to set aside the decree.; a reference to arbitration without the intervention of the court reunited in an award, in accordance with which a decree was passed. a suit was then brought to obtain a declaration that the decree was invalid. the grounds on which the plaintiff based his claim were grounds which had previously been substantially raised and determined in the proceedings taken under section 525 of the civil procedure code, on the application to file the award :-; (1) that the order that the award be filed should be regarded as a decree. ghulam khan v. muhammad hussan, hari mohan singh v. kali prasad chalilia and..........been substantially raised and determined in the proceedings taken under section 525 of the civil procedure code on the application to file the award. before us the further argument has been advanced that so far as concerns the plaintiff the reference was void inasmuch as he was a minor.5. but this too as well as the other point was decided adversely to the plaintiff in the application, under section 525 of the civil procedure code, which was numbered and registered as a suit. on that application an order was made directing the award to be filed' and the only question is whether matters then decided adversely to the plaintiff, who was a party, can now be relitigated.6. if they cannot then this suit must fail. the order that the award be filed must according to the decisions be.....
Judgment:

Lawrence Jenkins, C.J.

1. The litigants are descendants of a common ancestor Kuvarji Bhaiehand, who died in Samvat 1943. Disputes as to the family property resulted in a reference to arbitration without the intervention of the Court and an award in accordance with which a decree was passed. The purpose of this suit is to obtain a declaration that the decree was invalid.

2. The lower Court has dismissed the suit on the ground that if is opposed to the provisions of Section 42 of the Specific Relief Act and the plaintiff has appealed. The defendants have sought to support the decree on the ground that no good cause of action is shown and secondly that having regard to the proceedings in the arbitration matter the plaintiff is precluded from advancing the contentions on which he rests.

3. The plaintiff was a minor at the date of the reference and his mother who was his natural guardian purported to act on his behalf.

4. The grounds on which the plaintiff based his claim in the lower Court are set forth in that Court's judgment, but, as is there pointed out, all those grounds had previously been substantially raised and determined in the proceedings taken under Section 525 of the Civil Procedure Code on the application to file the award. Before us the further argument has been advanced that so far as concerns the plaintiff the reference was void inasmuch as he was a minor.

5. But this too as well as the other point was decided adversely to the plaintiff in the application, under Section 525 of the Civil Procedure Code, which was numbered and registered as a suit. On that application an order was made directing the award to be filed' and the only question is whether matters then decided adversely to the plaintiff, who was a party, can now be relitigated.

6. If they cannot then this suit must fail. The order that the award be filed must according to the decisions be regarded as a decree; Ghulam Khan v. Muhammad Hassan I L R (1901) Cal. 167 Hari Mohan Singh v. Kali Prosad Chalilia I L R (1905) Cal. 11, Thiruvawjadathiangar v. Vaidinath Ayyar I L R (1905) Mad, 33. But a decree means a formal expression of an adjudication deciding a suit (Section 3, Civil Procedure Code) and 1907 it follows that under Section 13 of the Civil Procedure, Code the points on which the plaintiff relies are matters which were directly and substantially in issue in a former suit and so cannot be tried in this suit.

7. For these reasons I would confirm the decree of the- first Court with costs, but the costs here and in the Court below must be estimated on the value of the subject matter.

Chandavarkar, J.

8. I concur.


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