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Abdul Aziz Shekh Vs. Chandu Sonu Khodke - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case Number Civil Extraordinary Application No. 274 of 1924
Judge
Reported inAIR1925Bom418; (1925)27BOMLR652
AppellantAbdul Aziz Shekh
RespondentChandu Sonu Khodke
Excerpt:
civil procedure code(act v of 1908) section 11, sch. ii, p. 20 - res judicata- application to flu award-application registered as a suit-abatement of suit-second suit to recover money due under award-bar of res judicata not applicable-plaint, return of-filing it in proper court.;where a person makes an application to file an award, which is registered as a suit, but the suit abates, a second suit to recover the money doe under the award is not barred by res judicata.;rajmal girdharlal v. maruti shivram (1920) i.l.r. 45 bom. 329 s.c. 22 bom. l.r. 1371, applied.;a suit can be filed to enforce an award without the plaintiff first obtaining an order that the award itself shall be filed. the validity of the award can be assailed in that suit.;where a plaint has been returned for presentation..........party filed a regular suit thereafter to enforce the award. in this case the applicant sought to file an award passed in his favour dated september 17, 1918. the application was registered as a suit. but thereafter the defendant died and his legal representatives were not brought on the record within the prescribed period. an order for abatement was then passed, the applicant then brought a suit in the first class subordinate judge court to recover the money under the award, but the plaint was returned by the joint subordinate judge as being beyond his jurisdiction and was presented to the small cause court. the plaintiff, however, thought he would prefer an appeal to the district judge against the decision of the joint judge returning the plaint. so he got back his plaint, but he lost.....
Judgment:

Norman Macleod, Kt., C.J.

1. In Rajmal Girdharmal v. Maruti Shivram I.L.R(1920) . 45 Bom. 329 22 Bom. L.R. 1371 it was held that when a party to an award sought to file it in Court under paragraph 20 of the second Schedule of the Civil Procedure Code, and the Court refused to file it, such refusal would not operate as a bar of -res judicata if the party filed a regular suit thereafter to enforce the award. In this case the applicant sought to file an award passed in his favour dated September 17, 1918. The application was registered as a suit. But thereafter the defendant died and his legal representatives were not brought on the record within the prescribed period. An order for abatement was then passed, The applicant then brought a suit in the First Class Subordinate Judge Court to recover the money under the award, but the plaint was returned by the Joint Subordinate Judge as being beyond his jurisdiction and was presented to the Small Cause Court. The plaintiff, however, thought he would prefer an appeal to the District Judge against the decision of the Joint Judge returning the plaint. So he got back his plaint, but he lost the appeal, and again presented the plaint to the Small Cause Court. The Judge considered that the suit was barred under Order XXII, Rule 9, considering that the decision in Rajmal Girdharmal v. Maruti Shivram was not applicable, and that although an order rejecting an application to file an award would not be considered as a decree, yet an order of abatement in a similar proceeding would bar a regular suit being filed to enforce the award. We cannot see any difference between the two. An order that an application to file an award abates is in the same catagory as an order refusing to file an award. So neither order can operate as res judicata. We further think that the Judge was wrong in holding that the suit was not maintainable because the plaintiff ought to have adopted a different procedure after the District Court had confirmed the order of the Subordinate Judge. He would be entitled, in any event, after his plaint was returned to him, to file it again in the same Court, subject to any bar there might be of limitation. The Judge also thought that the suit was misconceived as the plaintiff was trying to recover the amount awarded without a decree on the award, and the question whether the award was validly passed or not could not be tried in such a suit. But a suit can be filed to enforce an award without the plaintiff first obtaining an order that the award itself shall be filed. In such a suit there does not appear any reason why the validity of the award could not be assailed. We make the rule absolute and direct that the suit should be heard on its merits by the Small Cause Court Judge. Costs to be costs in the cause.


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