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Nasarwanji Hormusji Contractor Vs. Jamshetji Navroji Kapadia - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberCivil Revision Application No. 78 of 1929
Judge
Reported inAIR1932Bom232; (1932)34BOMLR376
AppellantNasarwanji Hormusji Contractor
RespondentJamshetji Navroji Kapadia
Excerpt:
civil procedure code (act v of 1908), section 115-award-setting aside of award-suit directed to be heard.;an application for revision, under section 115 of the civil procedure code, 1908, does not lie from an order passed by a lower court setting aside an award, made on a reference to arbitration in the course of a suit, and directing the trial of the suit before it to proceed.; damodar v. raghunath (1902) i.l.r. 26 bom. 651 : s.c. 4 bom. l.r. 267 and chimanbhai v. keshavlal (1923) i.l.r. 47 bom. 721 : s.c. 25 bom. l.r. 443 followed. - - 443 these two rulings, it is contended, are precisely on the point which is now before us, and unless and until those rulings are set aside by a decision of a full bench, we are bound to follow them. vasudev air1928bom5 these cases deal with..........decisions of this and other high courts to which he has referred. he has referred to the full bench decision in shiva nathaji v. joma kashinath ilr (1883) 7 bom. 341,f.b. vithal krishna v. balkrishna janardan ilr (1886) 10 bom. 610., also a full bench decision, and motilal kashibhai v. nana ilr (1892) 18 bom. 35, and he has in particular relied on the decision in secretary of state for india v. naraibhai dadabhai ilr (1923) 48 bom. 43 : 25 bom. l.r. 902, so also on kanhaiya lal v. jagannath prasad ilr (1920) al l305, dhapi v. ram pershad ilr (1887) cal. 768 and bombay steam navigation co. v.vasudev : air1928bom5 these cases deal with interlocutory orders of various descriptions (the number of interlocutory orders against which applications in revision are made are of course.....
Judgment:

Baker, J.

1. This is an application for revision of an order of the Subordinate Judge of Surat passed in a suit brought by the plaintiff against the defendant for accounts in connection with a partnership. The suit was by consent of parties referred to arbitration. The arbitrator made an award. Objection was taken by the plaintiff, the present opponent, to the award, and the Subordinate Judge, after going into the matter, set aside the award, and directed the trial of the suit to proceed before himself. Against this order an application in revision has been made by the defendant, and a preliminary objection has been taken by the learned Counsel for the opponent that no such application will lie under Section 115 of the Civil Procedure Code in the face of two rulings on this very point by this Court, i.e. in Damodar v., Raghunath ILR (1902) 26 Bom. 651 : 4 Bom. L.R. 267 and Chimanbhai v. Keshavlal ILR (1923) 47 Bom. 721 : 25 Bom. L.R. 443 These two rulings, it is contended, are precisely on the point which is now before us, and unless and until those rulings are set aside by a decision of a full bench, we are bound to follow them. In Damodar v. Raghunath it was held, where an award, made under the Civil Procedure Code on a reference to arbitration in the course of a suit, is set aside on the ground of the arbitrator's misconduct, the order setting aside the award is not subject to revision under Section 622 of the Civil Procedure Code, and that itis an interlocutory order and may be a ground of appeal against the decree passed in that suit. That decision is based on the decision of the Allahabad High Court in Chattar Singh v. Lekhraj Singh ILR (1883) All. 293 and it was followed by this Court in Chimanbhai v. Keshavlal, some ten years later, where it was held that no application lies, under Section 115 of the Civil Procedure Code, against an order passed under Schedule II, Rule 15, setting aside an award made on a reference to arbitration in the course of a suit. There is a similar decision of the Allahabad High Court in Shah Muhammad Fakhruddin v. Rahimullah Shah ILR (1924) All. 121. The contrary of course is the case where the award is directed to be filed by the Court and a decree passed upon it, in which case an application in revision under Section 115 will lie, as was held by this Court in Bhikhalal v. Acharatlal ILR (1924) 49 Bom. 535 : 27 Bom. L.R. 423 although even in that case it was held that the question of interference is purely discretionary, and no rule can be laid down as to how that discretion is to be exercised The learned Counsel for the applicant, while admitting the existence of these two rulings, which were on the same facts as in the present case, has argued that their authority has been weakened by subsequent decisions of this Court, and that they are not in accordance with the various decisions of this and other High Courts to which he has referred. He has referred to the full bench decision in Shiva Nathaji v. Joma Kashinath ILR (1883) 7 Bom. 341,F.B. Vithal Krishna v. Balkrishna Janardan ILR (1886) 10 Bom. 610., also a full bench decision, and Motilal Kashibhai v. Nana ILR (1892) 18 Bom. 35, and he has in particular relied on the decision in Secretary of State for India v. Naraibhai Dadabhai ILR (1923) 48 Bom. 43 : 25 Bom. L.R. 902, so also on Kanhaiya Lal v. Jagannath Prasad ILR (1920) Al l305, Dhapi v. Ram Pershad ILR (1887) cal. 768 and Bombay Steam Navigation Co. v.Vasudev : AIR1928Bom5 These cases deal with interlocutory orders of various descriptions (the number of interlocutory orders against which applications in revision are made are of course infinite), but I do not think that in view of the two rulings which are precisely on all fours with the present case, we can go into general principles in this case. I may further point out that in the decision on which the learned Counsel for the applicant has relied, viz., Secretary of State for India v. Narsibhai Dadabhai, there is a reference to the full bench decision in Shiva Nathaji v. Joma Kashinath, on which he has also relied, which goes against the principle for which he is contending, and that is the principle on which the two decisions already quoted, Damodar v. Raghunath and Chimanbhai v. Keshavlal, proceed,i.e., that in this case when the suit is to be tried on the merits by the Subordinate Judge, the award having been set aside, there will be a final decree, from which an appeal can be preferred to this Court, in which the question of the setting aside of the award of the arbitrator will be considered. In Shiva Nathaji v. Joma Kashinath, it was said (p. 357):-

When there is a remedy by appeal, the cases do not appear to warrant such interference, except under circumstances in which an appeal would manifestly be ineffectual.;

2. and again at p. 372,

Where an appeal is provided, the Court will not interfere by any premptory order with the ordinary course of adjudication, save in cases wherein a defeat of the law, and a grave wrong, are manifest, and are irremediable by the regular procedure.

2. Now in the present case, whatever the final decision of the case may be, itis not irremediable by regular procedure, inasmuch as it will be open to the person aggrieved by that decree to appeal in the ordinary course to this Court, but apart from this, in view of the fact that we have two decisions of this Court in Damodar v. Raghunath and Chimanbhai v. Keshavlal, precisely on the point which is now before us, I am of opinion that we are bound to follow those decisions unless and until they are set aside as incorrect by a full bench decision of this Court. For these reasons, I do not think itis necessary to go into a discussion of general principles where we have a special case exactly on the facts before us. I hold, therefore, that the preliminary objection that no application in revision will He must prevail, and the rule will accordingly be discharged with costs.


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