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Kanpur Nagar Mahapalika Vs. NaraIn Das Haribansh - Court Judgment

LegalCrystal Citation
SubjectArbitration
CourtAllahabad High Court
Decided On
Case NumberSupreme Court Appeal No. 139 of 1962
Judge
Reported inAIR1964All25
ActsCode of Civil Procedure (CPC) , 1908 - Sections 109 and 110; Constitution of India - Article 135; Arbitration Act, 1940 - Sections 17 and 39(1)
AppellantKanpur Nagar Mahapalika
RespondentNaraIn Das Haribansh
Appellant AdvocateN.D. Pant, Adv.
Respondent AdvocateJ. Swarup and ;Deoki Nandan, Advs.
DispositionApplication allowed
Excerpt:
.....procedure, 1908 and article 135 of constitution of india - award given during pendency upheld by high court in appeal - whether it can be considered as final determination of rights of parties - held, high court's order is final order under section 109(a) - application made for leave to appeal can be granted. (ii) arbitration - objection to award - sections 39(1)(vi) and 17 of arbitration act, 1940 - defendant raising objection against award - objection rejected by high court - order of high court amounts to refusal to set aside award - held, such an order is appealable. - 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..........section 109, c. p. c. clause (a) of section 109, c. p. c. provides for appeals from any judgment, decree or final order passed on appeal by high court'. we have, therefore, to consider whether the impugned decision of the high court amounts to a judgment, decree or final order within the meaning of clause ca) of section 109, c. p. c.5. in mohammad husain khan v. government of uttar pradesh, 1956 all lj 679 : ((s) air 1956 all 457) it was held by a full bench of this court that, in order to make an order a final order, three conditions must be satisfied, namely,1. that it should not be an interlocutory order; 2. that even though it is an order which disposes of the proceedings before a court finally, it should not be an order which leaves the original proceedings in the court below.....
Judgment:

Oak, J.

1. This is an application under Sections 109(a) and 110 of the C. P. C., read with Article 135 of the Constitution for a certificate for filing an appeal to the Supreme Court.

2. Messrs Narain Das Haribans Contractors filed against Kanpur Nagar Mahapalika a suit to recover a sum of Rs. 60,802/4/9, in the year 1946. During the pendency of this suit the matter in dispute was referred to arbitration. The Arbitrator gave an award for a sum of Rs. 54,000/- and odd in favour of the plaintiff. Parties filed objections against the award. The objection filed by the plaintiff was not pressed. The objection filed by the defendant was allowed by the learned Second Additional Civil Judge, Kanpur by his order dated the 31st of May, 1960. He held that the plaintiff's suit was barred by limitation, and dismissed it with costs.

3. The plaintiff filed an appeal against the order of the Additional Civil Judge, dated 31-5-1960. That was first appeal from order No. 330 of 1960. That first appeal from order was allowed by a Division Bench of this Court on 3-5-1962. The order under appeal was set aside, and the defendant's objection against the award was rejected. The award was made a rule of the Court. It was directed that, a decree should be prepared in accordance with the award. The defendant proposes to appeal to the Supreme Court against this Court's judgment dated the 3rd of May, 1962. Hence this application for a certificate.

4. The application has been filed under Clause (a) of Section 109, C. P. C. Clause (a) of Section 109, C. P. C. provides for appeals from any judgment, decree or final order passed on appeal by High Court'. We have, therefore, to consider whether the impugned decision of the High Court amounts to a judgment, decree or final order within the meaning of Clause Ca) of Section 109, C. P. C.

5. In Mohammad Husain Khan v. Government of Uttar Pradesh, 1956 All LJ 679 : ((S) AIR 1956 All 457) it was held by a Full Bench of this Court that, in order to make an order a final order, three conditions must be satisfied, namely,

1. That it should not be an interlocutory order;

2. That even though it is an order which disposes of the proceedings before a Court finally, it should not be an order which leaves the original proceedings in the Court below alive; and

3. That there should be a final determination of the rights of the parties or the order must of its own force affect the rights of the parties.

It was held that an order dismissing an application for setting aside an order of dismissal is not a final order within the meaning of Article 133 of the Constitution.

6. Another Full Bench of this Court dealt with this question in Savitri Devi v. Rajul Devi, 1960 All LJ 897 : (AIR 1961 All 245). It was held by the Full Bench that, an order of the High Court reversing the order of the trial Court recording a compromise does not amount to a judgment or final order within the meaning of these terms in Article 133 of the Constitution. In the present case, the situation is the converse of that, which obtained in Savitri Devi's case, 1960 All LJ 897: (AIR 1961 All 245 (FB)). In Savitri Devi's case 1960 All U 897 : (AIR 1961 All 245 (FB)), the High Court reversed the order of the trial court recording a compromise. In this way, the controversy between the parties was revived by the High Court. In the present case, the decision of the High Court is to the effect that, the dispute between the parties should be finally disposed of In terms of the award.

7. In Savitri Devi's case, 1960 All LJ 897 : (AIR 1961 All 245 (FB)) Beg J. laid down the following three tests for deciding whether Article 133 is attracted:

1. It should terminate the proceedings in the High Court;

2. It should determine the rights and liabilities of the parties;

3. The determination of the rights and liabilities as is envisaged in condition No. 2 should be on merits, and should further be final and conclusive so as to cover the entire range of substantive rights and liabilities which form the subject-matter of real controversy in the suit or proceedings which initially gave rise to the dispute. The impugned order in the present case satisfies the three tests laid down by Beg, J. There is a final determination of the rights of the parties. It is true that a decree had to be passed in terms of the award. But in substance the rights of the parties were finally disposed of by the decision of the High Court upholding the award. There is, therefore, no difficulty in treating the decision as a judgment or final order.

8. The learned counsel for the plaintiff-respondent relied upon Section 17 of the Arbitration Act. He pointed out that, Section 17 of the Arbitration Act requires that, the Court has to pass a judgment in terms of the award. He, therefore, contended that the mere order upholding the award cannot amount to a judgment. We, however, find no serious difficulty in contemplating two judgments in the course of the same case.

9. We are of the opinion that, the decision of the High Court, dated 3-5-1962 upholding the award amounts to a judgment or final order within the meaning of Clause (a) of Section 109, C. P. C.

10. The plaintiff's claim before the trial Court wasfor Rs. 60,802/4/9. The decree now passed in plaintiff'sfavour is for a sum of Rs. 54,347.02. Each of the twosums exceeds Rs. 10,000/-. So, the case satisfies Section 110of the C. P. C., as it stood in the year 1946.

11. The learned counsel for the plaintiff-respondent also relied upon Section 39 of the Arbitration Act in support of his contention that no appeal lies. According to Sub-Section (1) of Section 39 of the Arbitration Act, an appeal lies from an order refusing to set aside an award. By its order dated the 3rd of May, 1962, this Court refused to set aside the award. Such an order is appealable under Clause (vi) of Sub-section (1) of Section 39 of the Arbitration Act. It is laid down in Sub-section (1) of Section 39 of the Arbitration Act that, an appeal lies to the court authorised by Jaw to hear appeals from original decrees of the Court passing the order. Now, appeals from the original decrees of the High Court lie to the Supreme Court. There should, therefore, be no difficulty in holding that, an appeal lies under Sub-section (1) of Section 39 of the Arbitration Act. Sub-Section (2) of Section 39 of the Arbitration Act makes it clear that the right to appeal to the Supreme Court is not affected by the provision that no second appeal lies.

Section 17 of the Arbitration Act states:

'Upon the judgment so pronounced a decree shall follow and no appeal shall lie from such decree except on the ground of its being in excess of or not otherwise in accordance with the award.'

11a. On 3-5-1962, this Court passed the following composite order:

'The order under appeal is set aside. The objections to the award are rejected. The award is made a rule of the Court and a decree shall be prepared in accordance with it The appellant will get his costs from the respondent in respect of this appeal.'

It will be noticed that the decision of this Court dated 3-5-1962 covers two matters. Firstly, the defendant's objection against the award was overruled. The Court declined to set aside the award. Secondly, it was directed that a decree should be prepared in terms of the award.

12. Now, under Section 17 of the Arbitration Act, no appeal lies from such a decree except on the ground of its being in excess of or not otherwise in accordance with the award. The present application for a certificate does not clearly show against which part of the decision dated 3-5-1962 the defendant proposes to appeal to the Supreme Court. But Mr. N.D. Pant appearing for the applicant made it clear before us that, the proposed appeal will be confined to the decision of this Court refusing to set aside the award. The appellant is not making any grievance that the decree as drawn up is in excess of or not otherwise in accordance with the award. The proposed appeal is not in terms of Section 17 of the Arbitration Act, but is of the nature of an appeal under Clause (vi) of Sub-Section (1) of Section 39 of the Arbitration Act.

13. The suit, out of which the present application for a certificate arises, was filed in the year 1946. So, the right of appeal to the Supreme Court will be governed by the relevant provision of law in the year 1946. In 1946 appeals from decisions of High Courts lay to the federal Court. So, the present case will be governed by Art 135 of the Constitution. As discussed above, the defendant has shown that he had a right of appeal to the Federal Court under Clause (a) of Section 109, C. P. C. read with Section 110, C. P. C. So, under Article 135 of the Constitution, the applicant is now entitled to appeal to the Supreme Court against this Court's decision dated 3-5-1962.

14. The application is allowed. Under Sections 109(a) and 110, C. P. C. read with Article 135 of the Constitution, we certify that the amount of the subject-matter in dispute in the Court of first instance was over Rs. 10000/-, and that the amount of the subject-matter in dispute on appealto the Supreme Court is also above Rs. 10000/-.


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