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Ram Nagina Singh Vs. Thakur Ram Janki - Court Judgment

LegalCrystal Citation
SubjectArbitration;Civil
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 1256 of 1971
Judge
Reported inAIR1976All21
ActsArbitration Act, 1940 - Sections 47; Code of Civil Procedure (CPC), 1908 - Sections 115 - Order 23, Rule 2
AppellantRam Nagina Singh
RespondentThakur Ram Janki
Appellant AdvocateR.R. Agarwal, Adv.
Respondent AdvocateShambhu Pd., Adv.
DispositionRevision allowed
Excerpt:
.....- award - section 47 of arbitration act, 1940 , section 115 and order 23 rule 2 of code of civil procedure, 1908 - award to be treated as an adjustment or compromise - consent must be given to the court when award is being taken up by it - antecedent consent outside the court not contemplated by the provisions of arbitration act,1940 - court treating the award to be a compromise or adjustment without the consent of the parties - court deemed to be acting illegally and without jurisdiction - held, revision maintainable. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees..........the division of land having been accepted by the parties, the provisions of order 23. rule 3, civil procedure code were clearly attracted and it was not necessary to consider the effect of the proviso to section 47 of the arbitration act. in other words, it was submitted that the arbitration proceedings were separate from the act of the parties in accepting the division of land. the compromise was not illegal nor beyond the scope of the suit. hence a decree was bound to be passed on its basis in terms of order 23, rule 3, civil procedure code. reliance was placed on the following cases:dular koeri v. fayag koeri, (air 1942 all 145) (fb); : air1955all353 ; abdul rahman saheb v. mohammad siddiq, : air1953mad781 ; salima bibi v. md. ibrahim saheb. (air 1962 andhra pra 123).5. in my.....
Judgment:
ORDER

M.P. Mehrotra, J.

1. This revision is directed against the decree passed by the lower appellate court in an appeal against a compromise decree passed by the trial court. The lower appellate court dismissed the appeal and the plaintiff-appellant feeling aggrieved, has come up in the instant revision.

2. The brief facts are these: There was a dispute between the parties in respect of a piece of land which was claimed to be the Sahan land by the plaintiff-appellant. It was alleged that the defendant-respondent interfered with the possession of the plaintiff over the said piece of land and wanted to enclose the same. Therefore, the suit was filed by the plaintiff claiming a permanent injunction restraining the defendant from acting in the said manner. The defendant-respondent disputed the plaintiff's claim and claimed the land to belong to himself. During the pendency of the suit the parties referred their dispute to some arbitrators without the intervention of the court. An award was made by the arbitrators which was accepted by both parties and in token of their acceptance the parties signed the award. Thereafter, the defendant treating the award as a compromise moved the court to pass a decree in its terms. The plaintiff, however, filed objections and raised two grounds. He denied that the award was in the nature of a compromise between the parties. He further contended that the award if treated as a compromise was too vague to be acted upon. The trial court overruled both these contentions of the plaintiff and treating the award to be a compromise between the parties passed the decree thereon. The plaintiff felt aggrieved with the trial court's decree and went up in appeal to the lower appellate court. Two questions were raised before the said court. Firstly, it was contended that the consent spoken of in the proviso to Section 47 of the Arbitration Act is to be confined only to such consent as is given before the court and not a consent given outside the court. Secondly, it was contended that the awardwas very vague and no executable decree could be passed in its terms. Both these contentions were repelled by the lower appellate court and the trial court's decree was confirmed. The plaintiff applicant has now come up in the instant revision and his learned counsel has again contended that the consent outside the court to an award will not be a good consent. Reliance has been placed on the following cases on behalf of the plaintiff-applicant:

Zeauddin v. Abdur Rafique. : AIR1952Pat66 ; Raghunandan Rai v. Sukhlal Rai : AIR1952Pat258 ; : AIR1957Pat656 ; Sitaramji Maharaj v. Ramnath Singh : AIR1961Pat448 : Jumman Khan v. Mujibul Hasan Khan, (1957 All LJ 192); Moradwaj v. Bhudar Dass : AIR1955All353 ; Jugal Das Damodar Modi & Co. v. Purshottam Umedbhai : AIR1953Cal690 : Kissan Gopal Nathani v. Murlidhar Chowdhury. : AIR1962Cal581 Salima Bibi v. Mohd. Ibrahim Sahib, (AIR 1962 Andh Pra 123); Bisnath v. Bastimal : AIR1968MP208 .

3. The learned counsel for the defendant-opposite party has contended that the revision is not maintainable in law as no jurisdictional error was committed by the courts below in passing their orders.

4. It was next contended that as the suit was in respect of the Sehan land and by the award the said land was divided between the parties the acceptance of the award by the parties would mean that they accepted the division effected by the arbitrator. The division of land having been accepted by the parties, the provisions of Order 23. Rule 3, Civil Procedure Code were clearly attracted and it was not necessary to consider the effect of the proviso to Section 47 of the Arbitration Act. In other words, it was submitted that the arbitration proceedings were separate from the act of the parties in accepting the division of land. The compromise was not illegal nor beyond the scope of the suit. Hence a decree was bound to be passed on its basis in terms of Order 23, Rule 3, Civil Procedure Code. Reliance was placed on the following cases:

Dular Koeri v. Fayag Koeri, (AIR 1942 All 145) (FB); : AIR1955All353 ; Abdul Rahman Saheb v. Mohammad Siddiq, : AIR1953Mad781 ; Salima Bibi v. Md. Ibrahim Saheb. (AIR 1962 Andhra Pra 123).

5. In my view, the contention raised on behalf of the plaintiff-applicant is correct. In the Full Bench decision of our court reported in : AIR1955All353 (Supra), it has been laid down as under:--

'I am, therefore, of opinion that an award obtained without the intervention of court in respect of matters which are the subject-matter of a proceeding pending in a court of law can only be given effect to as an adjustment under Order 23, Rule 2, Civil Procedure Code or under Order 23, Rule 3. Civil Procedure Code if all the parties interested give their consent to this being done and not otherwise.'

6. These observations clearly mean that the consent must be given to the court when the award is taken up by it and is sought to be treated as an adjustment or compromise under Order 23. (sic) (Order 21 ?--Ed.) Rule 2, Civil Procedure Code or under Order 23, Rule 3, Civil Procedure Code. The antecedent consent outside the court, even if it is given after the delivery of the award, is not contemplated by the proviso to Section 47 of the Arbitration Act. This interpretation of the said Full Bench is also supported by the fact that in the earlier part of the judgment the following observations of Ray, C. J., in : AIR1950Ori169 were approved:--

'But the proviso also requires in terms, the consent of all the parties interested as a condition precedent for the exercise of the power to take the matter into consideration. It is to be noticed that the award cannot be taken into consideration on the application of one only of the parties, nor by court itself suo motu. The context indicates that the consent specified in the proviso is a consent given at the time when the matter is to be taken into consideration.'

7. It should also be noticed that the said Full Bench also approved the law laid down in : AIR1952Pat258 , : AIR1953Cal690 and : AIR1953Mad781 . In : AIR1952Pat258 , a Division Bench of the Patna High Court laid down as under:--

'Therefore, apart from any authority, it is clear that under this proviso it is not open to the court to record any arbitration award under Order 23, Rule 3, Civil Procedure Code if objection to the recording of it is made by any party.'

8. In : AIR1953Cal690 , it was laid down as under:

'The proviso to Section 47 applies to all arbitration awards obtained otherwise than under the provisions of the Act and enables the consideration of the award as a compromise or adjustment of the suit with the consent of all the parties interested, by the court before which the suit is pending and by no other court. The consent of the parties to the submission is not sufficient if there are other parties interested. The joint consent of all the parties interested is necessary at the point of time when the court is to take the award into consideration as a compromise or adjustment. The antecedent consent is immaterial just as antecedent invalidity does not debar the court fromrecognising it as compromise by common consent. The proviso does not render the award valid nor does it make it enforceable as an award proprio vigore. The proviso enables the recognition of the award for a limited purpose by consent. Where such consent is withheld, it cannot be recognised even for that limited purpose.'

9. The learned counsel for the defendant-opposite party placed reliance on the Full Bench decision of the Allahabad High Court reported in AIR 1942 All 145 (Supra). The said Full Bench has been distinguished in the later Full Bench decision reported in : AIR1955All353 (Supra) on the ground that the reference to arbitration in the earlier Full Bench case was made before the commencement of the Arbitration Act of 1940 and, therefore, the case fell to be decided under the old law. It is well known that the proviso to Section 47 was added to resolve the conflict which prevailed under the old law on the point whether an award obtained otherwise than as laid down could be treated as compromise or adjustment under Order 23 (sic), Rule 2 or under Order 23, Rule 3, Civil Procedure Code As a single Judge I am, bound by the law laid down in the latter Full Bench decision of this Court.

10. In view of the aforesaid interpretation of the said Full Bench decision of our court, it is not necessary to consider the law laid down in the decisions of other courts on which reliance has been placed by the learned counsel for the defendant-opposite party. It may, however, be observed that : AIR1953Mad781 (Supra) is, in no way, against our aforesaid Full Bench. In the Madras decision, it was laid down as under:

'Under the proviso to Section 47, an arbitration award obtained otherwise than in proceedings taken in accordance with the act cannot without more be recognised as a compromise or adjustment of the suit; no decree can be passed thereon under proviso of Order 23, Rule 3, Civil Procedure Code.

But if. after an award is made the parties thereto agree to accept it, that will be a compromise and a decree passed thereon can be passed under Order 23, Rule 3, Civil Procedure Code. That the parties had consented to the reference is not such a consent.'

11. AIR 1962 Andh Pra 123 undoubtedly supports the contention put forward on behalf of the defendant-opposite party. However, it is a single Judge pronouncement and it is not of any avail in view of the contrary pronouncement of the aforesaid Full Bench of this Court.

12. In my view, the preliminary objection about the maintainability of the revision is untenable. If a court of law treats an award to be a compromise or adjustment under Order 23 (sic) (Order 21 ?--Ed.) Rule 2, Civil Procedure Code or Order 23. Rule 3. Civil Procedure Code without the consent of the parties, then the court should be deemed to be acting illegally and without jurisdiction. In my view, the revision would be maintainable as the court below should be deemed to have acted against the mandatory provisions of the law laid down in the proviso to Section 47.

13. The revision is accordingly allowed and the orders passed by the courts below are (set) aside. The application moved on behalf of the defendant-opposite party under Order 23, Civil Procedure Code praying that the award be treated as compromise or adjustment between the parties shall stand rejected and the trial court shall proceed with the trial of the suit. In the circumstances of the case, I make no order as to costs.


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