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Jagat Pande Vs. Sarawan Pande and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1925All404
AppellantJagat Pande
RespondentSarawan Pande and ors.
Excerpt:
- .....of the civil procedure code. in paragraph 6 of the plaint he stated that his object was to get the award filed, and to obtain a decree upon it. in the course of the proceedings a plea was taken before the learned munsif that the defendant was a lunatic and incapable of representing his own interests. the learned munsif ultimately, however, disposed of the matter by an ex parte order in these terms:judgment. suit for the enforcement of an award. defendant's pleader states that he has no instructions. suit is heard ex parte. claim is proved. decreed with costs.2. the defendant went in appeal to the learned district judge. the learned district judge held that the question of the defendant's capacity had not been properly disposed of in the proceedings. he, therefore, set aside the order of.....
Judgment:

Daniels, J.

1. This first appeal from order arises out of an arbitration award made without the intervention of the Court. The plaintiff-appellant came into Court with an application which is very inartistically drawn, but which has been treated throughout and is now treated by him as in substance an application to file an award under paragraph 20 of the second schedule of the Civil Procedure Code. In paragraph 6 of the plaint he stated that his object was to get the award filed, and to obtain a decree upon it. In the course of the proceedings a plea was taken before the learned Munsif that the defendant was a lunatic and incapable of representing his own interests. The learned Munsif ultimately, however, disposed of the matter by an ex parte order in these terms:

Judgment. Suit for the enforcement of an award. Defendant's pleader states that he has no instructions. Suit is heard ex parte. Claim is proved. Decreed with costs.

2. The defendant went in appeal to the learned District Judge. The learned District Judge held that the question of the defendant's capacity had not been properly disposed of in the proceedings. He, therefore, set aside the order of the learned Munsif and remanded the whole eases for trial de novo. The plaintiff comes here in appeal from that order. His contention is that the appeal was one from a decree passed in accordance with the award, and that, therefore, under para. 21(2) of the second schedule of the Code-of Civil Procedure, the appeal to the District Judge was incompetent.

3. The law governing the right of appeal in these case s is contained in Section 104(1)(f), Section 104(2), and para. 21(2) of the second schedule of the Civil Procedure Code. An appeal is allowed from an order filing or refusing to file an award, but no further appeal is allowed from an order passed on such an application. On the other hand, when an award has been filed and a decree is made in accordance with it, no appeal lies from such decree except in so far as it is at variance with the award. In this case the appellant's contention is that the respondent should have appealed from the separate order directing the award to be filed. The difficulty is that no such separate order is to be found on the record. Instead of passing an order directing the award to be filed and proceeding to pass a decree upon it in accordance with law the learned Munsif disposed of the whole case by the very brief order which has been quoted above. This was the only order from which it was possible for the respondent to appeal. We think, therefore, that the appeal was, in substance an appeal from an order directing the award to be filed. It is established by ample authority that the, right of appeal is not taken away by the fact that the decree has subsequently been passed in accordance with the award. We may refer to Hari Kunwar v. Lakhmi Ram Jain (1916) 38 All. 380 and Lachmi Narayan v. Sheonah Pande (1919) 42 All. 185. This appeal to the Court below having been one from an order directing an award to be filed, no further appeal lies to this Court. We accordingly dismiss the appeal with costs.


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