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Shidgouda Basvantgouda Patil Vs. Bhimgouda Appaya Patil - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberAppeal from Order No. 52 of 1932
Judge
Reported inAIR1935Bom78; (1934)36BOMLR1222
AppellantShidgouda Basvantgouda Patil
RespondentBhimgouda Appaya Patil
DispositionAppeal dismissed
Excerpt:
civil procedure code (act v of 1908), schedule ii, para. 15(1)(c) - award-refusal to file award-appeal-practice-procedure.;an order refusing to file an award under para, 15 of schedule ii of the civil procedure code, 1908, is not appealable. - - but it appears to us from reading the judgment which led to the order of march 14, 1932, that the order was quite clearly intended to be an order refusing to file an award and was passed under para. clearly the intention of the learned subordinate judge was not to supersede the arbitration proceedings by his order of march 14, 1932, but to refuse to file an award on the ground that there was no award to file......an order passed by the first class subordinate judge of belgaum in connection with an arbitration award. the appeal purports to be under section 104(1)(a) of the civil procedure code against 'an order superseding an arbitration where the award has not been completed within the period allowed by the court.' the plaintiff in the suit had sued for possession of his alleged one-third share in the suit property and for having his share divided by metes and bounds, and for other reliefs. arbitrators were appointed to go into the matter, and it was directed that their award should be made on or before july 20, 1931. two days before the time fixed for the expiry of the award, (i.e. on july 18, 1931), they applied for an extension of time on the main ground that it was difficult to divide the.....
Judgment:

Macklin, J.

1. This appeal arises out of an order passed by the First Class Subordinate Judge of Belgaum in connection with an arbitration award. The appeal purports to be under Section 104(1)(a) of the Civil Procedure Code against 'an order superseding an arbitration where the award has not been completed within the period allowed by the Court.' The plaintiff in the suit had sued for possession of his alleged one-third share in the suit property and for having his share divided by metes and bounds, and for other reliefs. Arbitrators were appointed to go into the matter, and it was directed that their award should be made on or before July 20, 1931. Two days before the time fixed for the expiry of the award, (i.e. on July 18, 1931), they applied for an extension of time on the main ground that it was difficult to divide the land during the rains. The time was accordingly extended to July 31. On July 31 two of the arbitrators applied for a further month's time for completing the award, and they said that the shares had been settled but that the work of actual division still remained to be done. Time was accordingly extended till August 13. On August 13, one of the arbitrators told the Court that a difficulty had arisen in that the defendant was unwilling to give possession, and asked the Court to pass such orders as it pleased. The Court asked the parties to state whether they required notices to be served in accordance with para. 5 of Schedule II of the Civil Procedure Code, and granted time for that purpose till August 20. On August 20, defendant No. 1 applied to the Court to. send the case to the remaining five arbitrators (that is, the arbitrators who had not taken part in the application of August 13). But the other, parties said that they were not willing to have the matter decided by those arbitrators, and they asked the Court to try the suit. The Court accordingly wrote the words 'Fix for hearing'; and that order was dated the same day, August 20. On September 30, defendant No. 1 alleged that an award had been actually made concerning the shares of the parties, and asked that a decree should be passed in terms of that award. He produced the so-called award in Court, and it was considered by the learned Subordinate Judge. It is the order, dated March 14, 1932, which was finally passed upon this application of defendant No. 1, that is the subject of the present appeal. In it the Court held that the award produced by defendant No. 1 was not an award at all, and it, therefore, ordered that the suit should be fixed for hearing.

2. A preliminary point has been taken in this appeal by the plaintiff-respondent on the ground that no appeal lies. The ground of the objection is that if there was in fact an order of supersession of the arbitration proceedings within the meaning of Section 104(1)(a), then the only order in the proceedings which can be described as such is the order 'Fix for hearing,' dated August 20, and that order is now out of time. It is further contended that the order against which this appeal purports to be made, that is to say the order of March 14, 1932, is in effect an order refusing to file an award under para. 15 of Schedule II of the Civil Procedure Code, and is not appealable. We accept these contentions.

3. It is contended for the appellants that the order against which this appeal has been brought is really an order of supersession. The argument is that if the proceedings which ended on March 14, 1932, were not in connection with an order of supersession, then the issues would have been differently framed. Those issues are:

(1) Whether the writing produced with exhibit 88 is not an 'award' within the meaning of Schedule II, Rule 10?

(2) Whether the persons who made it have ' caused it to be filed in Court' as required by the above provision?

(3) Whether the arbitrators remained competent in view of the order below exhibits 61 and 62?

4. The argument amounts to this, that if the order passed in the words 'Fix for hearing' on August 20 was intended to be an order superseding the arbitration on the ground that the award had not been completed within the time fixed, then these issues would not have arisen at all. But it appears to us from reading the judgment which led to the order of March 14, 1932, that the order was quite clearly intended to be an order refusing to file an award and was passed under para. 15 of Schedule II as an order ' otherwise invalid ' within the meaning of para. 15(1)(c). The grounds for the order were thas there was in fact no final award at all on July 10, 1931-the date given to the paper produced by defendant No. 1 with a request that a decree should be passed upon that paper. Clearly the intention of the learned Subordinate Judge was not to supersede the arbitration proceedings by his order of March 14, 1932, but to refuse to file an award on the ground that there was no award to file. Such an order is not appealable at this stage. The only order remaining is the order of August 20, 1931; and an appeal against that order assuming it to fall under Section 104(1)(a) is now out of time.

5. For these reasons we hold that no appeal now lies, and we dismiss the appeal with costs.


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