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Rajmal Girdharlal Marwadi Vs. Maruti Shivram - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case Number Second Appeal No. 427 of 1919
Judge
Reported inAIR1921Bom389; (1920)22BOMLR1377
AppellantRajmal Girdharlal Marwadi
RespondentMaruti Shivram
DispositionAppeal allowed
Excerpt:
.....v of 1908), section 11, schedule ii, rule 20 - arbitration out of court-award not filed by court-separate suit to enforce the award not barred by res judicata.;all award was made on arbitration out of court. the plaintiff applied to file the award under para 20 of the second schedule of the civil procedure code. the application was numbered as a suit, but it was summarily rejected, without trying the validity of the award, on the ground that treated as a suit it was time-barred. the plaintiff, next) filed a regular suit to enforce the award; it was objected to as having been barred by res judicata :-;overruling the objection, that the bar of judicata did not apply. - - their lordships of the privy council with reference to section 13 of the then civil procedure code, corresponding to..........against the defendants. various issues were raised in the trial court. the 4th issue was-is the suit barred by limitation? the trial court held that the suit was barred. it proceeded to find on the remaining issues. the result was that the suit was dismissed.2. in appeal the learned appellate judge hold that the suit itself was not barred by limitation, but that it was barred by the rule of res judicata. it appears that the award was made on the 28th november 1910. the plaintiff then applied to file the award under para 20 of the second schedule to the civil procedure code. that application was rejected on the 12th january 1914. the plaintiff could appeal against that order under section 104 of the civil procedure code. the plaintiff did appeal to the district court, and also applied.....
Judgment:

Norman Macleod, Kt., C.J.

1. The plaintiff sued to enforce an award against the defendants. Various issues were raised in the trial Court. The 4th issue was-Is the suit barred by limitation? The trial Court held that the suit was barred. It proceeded to find on the remaining issues. The result was that the suit was dismissed.

2. In appeal the learned appellate Judge hold that the suit itself was not barred by limitation, but that it was barred by the rule of res judicata. It appears that the award was made on the 28th November 1910. The plaintiff then applied to file the award under para 20 of the Second Schedule to the Civil Procedure Code. That application was rejected on the 12th January 1914. The plaintiff could appeal against that order under Section 104 of the Civil Procedure Code. The plaintiff did appeal to the District Court, and also applied to the High Court in revision, but in both Courts the lower Court's decision was upheld.

3. It has now been argued that the question whether the plaintiff is entitled to get a decree on the award is res judicata and this suit was therefore barred. It can only be res judicata if the application to file the award can be considered as a suit. No doubt the application under para 20 of the Second Schedule to the Civil Procedure Code is numbered and registered as a suit. But it does not follow that it thereby becomes a suit within the meaning of the word 'suit' in the Code. The procedure followed is not that of a suit, but the procedure regulated by para 21. The Court can only consider whether any ground such as is mentioned or referred to in para 14 or 15 is proved, and the Court has power either to order the award to be filed or to refuse to file the award. If it orders the award to be filed, then it must pronounce judgment according to the award, and upon the judgment so pronounced the decree shall follow. Under Section 11 of the Civil Procedure Code no Court shall try any suit or issue in which the matter directly and substantially in issue his been directly and substantially in issue in a former suit between the same parties. It cannot be said that the proceedings under paras 20 and 21 of the Second Schedule were proceedings in a suit, though for the purposes of convenience they may be numbered and registered as a suit. Order IV refers to the institution of suits. Rule 1 says that every suit shall be instituted by presenting a plaint to the Court or such officer as it appoints in this behalf. Then the following Orders refer to the issue and service of summons and the proceedings that must follow when a regular suit has been instituted. This question was decided in Kunji Lal v. Durga Prasad I.L.R. (1910) All. 484 in which the Court felt itself bound to follow the series of decisions of its own Court, although the learned Judges seemed to think that there were some expressions in the case of Ghulam Khan v. Muhammad Hassan I.L.R. (1901) Cal. 167. from which it might be considered that their Lordships of the Privy Council were of opinion that an order made under old Section 525 was a decree. No doubt a decree can be made when the Court pronounces judgment on the award, and there being no appeal against that, the question whether a suit could be filed to enforce the award would never arise. An order refusing to file an award is a different matter. It cannot be considered as a decree. In my opinion, therefore, this suit is not barred by res judicata. It is not barred by limitation, because it seems to be settled now that a suit to enforce an award is a suit not provided by any other article of the Limitation Act. Then the time is six years under Article 120. The appeal therefore must be allowed and the case remanded to the lower appellate Court for decision on the remaining issues. The appellant must get his costs of the appeal.

Fawcett, J.

4. I agree that the word 'suit' in Section 11 of the Civil Procedure Code cannot properly be extended to cover an application under para 20 of the Second Schedule of the Code even though such application is to be registered as a suit. In Gokul Mandar v. Pudmanund Singh I.L.R. (1902) Cal. 707, P.C. their Lordships of the Privy Council with reference to Section 13 of the then Civil Procedure Code, corresponding to the present Section 11, made the well-known remark that the essence of a code is to be exhaustive on the matters in respect of which it declares the law, and it is not the province of a Judge to disregard or go outside the law and the enactment according to its true construction. Also in Ram Kirpal v. Rup Kuari I.L.R. (1883) All. 269, P. C. their Lordships held that judgment in execution proceedings would have a binding force not under this particular section but upon general principles of law. It is upon such general principles that the learned District Judge has apparently gone in holding that the present suit is barred. But the adjudication on an application to file an award under para 20 is restricted under para 21 to a particular class of questions, and I do not think in those circumstances that the general principles of res judicata should be held to be applicable BO as to bar the right of suit to a person who has succeeded in obtaining the award. The only authority on the question that has been cited to us is also against any such doctrine.

5. As regards the question of limitation, it has already been held in this Court in Fardunji v. Jamsedji (1903) 5 Bom. L. R. 705 that a suit on an award to recover a certain sum of money allowed by the arbitrator is not a suit for specific performance, and therefor this Court should agree with the decisions which hold that such a suit as the present does not fall under Article 113 of the Indian Limitation Act.

6. Since the oral delivery of the above judgment my attention has been drawn to the observations of the Judicial Committee in Mohammad Newaz Khan v. Alain Khan I.L.R. (1891) Cal. 414. which (according to the view taken in Ponnusami Mudali v. Mandi Suttdara Mudali I.L.R. (1903) Mad. 255 clearly imply that any matter which is directly and substantially in issue and is determined in a proceeding under Section 525 (corresponding to para 20 of Schedule II of the present Code) would be res judicata in any subsequent litigation between the same parties. With due respect it seems to me that their Lordships left entirely open the question whether an application under Section 525 is a suit such as is contemplated in Section 13 (see at p. 419). But even assuming it was such a suit, they held that the mere refusal to file an award would not constitute a binding judgment against the validity of the award, unless the particular ground on which its validity is assailed was definitely raised and put in issue and made the subject of a trial. In the present case the question of the validity of the award does not appear to have been so tried in the proceedings on the application to file the award; for the application was summarily rejected on the ground that, treated as a suit, it was time-barred.


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