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Chimanbhai Kalyanbhai and anr. Vs. Keshavlal Bulakhidas and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1923)ILR47Bom721
AppellantChimanbhai Kalyanbhai and anr.
RespondentKeshavlal Bulakhidas and ors.
Excerpt:
.....suit, on the ground of the arbitrators' misconduct, was not subject to revision under section 622. the order complained of was interlocutory and, if erroneous, might form a ground of appeal against any decree that might be passed in the suit. there is no appeal from that decision and as it is clearly an interlocutory order, an application to revise it is not competent......by any court subordinate to such high court and in which no appeal lies thereto. it cannot be said in this case that there has been a decision of the suit by the subordinate judge. he only decided not to pass a decree in terms of the award but to continue the hearing of the suit by the court. there is no appeal from that decision and as it is clearly an interlocutory order, an application to revise it is not competent. it is unnecessary therefore to discuss the grounds on which the judge decided that he should not pass a decree in terms of the award. when the suit is finally decided it may be open to the parties supporting the award to appeal on the ground that a decree ought to have been passed in terms of the award. bat we may refer perhaps at the present moment to the decision in.....
Judgment:

Norman Macleod, Kt., C.J.

1. In this case there was a reference to arbitration in which an award was made. When an application was made to the Court to pass a decree in terms of the award, objections were taken to it on various grounds. The Judge framed three issues for preliminary trial:

(1) Was the permission of the Court taken to refer this dispute to the arbitrator in this case so as to make the reference binding on the minor defendants on the record ?

(2) If not, is the award, Exhibit 191, binding on the said minor defendants? Is the reference itself not bad if the first issue is held in the negative?

(3) Is defendant, Dhansukhlal, not a major now Did he attain his majority pending the suit; if so, on what date?

2. It was found, that defendant Dhansukhlal became a major on 19th July 1920 pending the suit. The first two issues were found against the plaintiffs seeking for a decree on the award. The consequence was that the Court refused to pass a decree in terms of the award. The arbitration proceedings became a nullity and the suit had to proceed in the ordinary course.

3. From that order of the Judge an application has been made to us under Section 115 of the Code. A preliminary objection has been raised by the opponents that it is not competent to this Court in such a case to consider an application in revision. In Damodar v. Raghunath (1902) 26 Bom. 551 it was held that an order under Section 521 of the Code of LS82, setting aside an award made under Chapter XXXVII of the Code on, a reference to arbitration in the course of a suit, on the ground of the arbitrators' misconduct, was not subject to revision under Section 622. The order complained of was interlocutory and, if erroneous, might form a ground of appeal against any decree that might be passed in the suit.

4. Under Section 115 of the present Code, the High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto. It cannot be said in this case that there has been a decision of the suit by the Subordinate Judge. He only decided not to pass a decree in terms of the award but to continue the hearing of the suit by the Court. There is no appeal from that decision and as it is clearly an interlocutory order, an application to revise it is not competent. It is unnecessary therefore to discuss the grounds on which the Judge decided that he should not pass a decree in terms of the award. When the suit is finally decided it may be open to the parties supporting the award to appeal on the ground that a decree ought to have been passed in terms of the award. Bat we may refer perhaps at the present moment to the decision in Atmaram v. Bhila (1912) Bom. L.R. 223 in which this Court decided that an agreement to refer in a suit was an agreement coming within the provisions of Order XXXII, Rule 7, Therefore the sanction of the Court was necessary in the case of a minor party. The rule is discharged with costs. It is desirable that the hearing of this suit should be expedited as much as possible.


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