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Nawabzada S.M. Ali Dabir and anr. Vs. Nawabzada S.M. Ali Kabir Khan and ors. - Court Judgment

LegalCrystal Citation
SubjectArbitration
CourtAllahabad High Court
Decided On
Case NumberFirst Appeal No. 133 of 1956
Judge
Reported inAIR1964All185
ActsArbitration Act, 1940 - Sections 14, 14(2), 17, 39, 39(1) and 46; Uttar Pradesh Court of Wards Act, 1912 - Sections 58
AppellantNawabzada S.M. Ali Dabir and anr.
RespondentNawabzada S.M. Ali Kabir Khan and ors.
Appellant AdvocateJagdish Swaroop, Adv.
Respondent AdvocateAmbika Prasad, Adv.
Excerpt:
.....court of wards act, 1912 - award under section 58 whether can be implemented under section 17 - award not filed by arbitrator - prescribed procedure has to be followed to make award enforceable - award not filed in consonance with prescribed procedure cannot be enforced. - - where the court is satisfied. but the arbitration act is not, in my opinion, exhaustive in the sense that an application like this could be thrown out as incompetent in the absence of a clear provision in the act. dominion of india [1953]4scr878 it was held that, section 14(2), arbitration act clearly implies that where the award is in fact filed into court by a party, he should have the authority of the umpire for doing go. if an award comes before a court and the court is satisfied about its validity, the..........filed into court by a party, he should have the authority of the umpire for doing go. where the awards are handed over by the umpire to the party, it cannot be assumed that the mere handing over of the awards unnecessarily implies the authority of the umpire to file the same into court on his behalf. that authority has to be specifically alleged and proved. in the absence of such authority, the filing of the awards by the party cannot be the filing by the umpire. under section 14(2), the actual filing by the umpire is not essential. it is sufficient if the umpire causes the award to be filed.24. in kumbha mawji's case : [1953]4scr878 the umpire handed over the award to the applicant. the applicant filed it in court. in the present case the arbitrator did not hand over the award to the.....
Judgment:

Oak, .J.

1. The main question for consideration in this appeal is whether an award made under Section 58 of the U. P. Court of Wards Act, 1912 (hereafter referred to as the Court of Wards Act) can be implemented under Section 17 of the Arbitration Act, 1940 (hereafter referred to as the Arbitration Act). The appeal arises out of arbitration proceedings.

(2) The parties are related to one another as shown in the pedigree given in the appellants' application, dated 20-1-1955. One Nawab Ali Nasir Khan had two wives--Ashfaq Jahan Begum and Humayun Jahan Begum. Ali Dabir and Ali Mushir appellants are Nawab Ali Nasir Khan's sons from the second wife. AH Kabir and other respondents are Nawab Ali Nasir Khan's children from his first wife. The dispute relates to property, which was known as Bulaqipur Estate in district Gorakhpur. There was litigation in the family after the death of Nawab Ali Nasir Khan in 1931. Ali Kabir was appointed guardian of the appellants, who were then minors. In 1941 the property was taken over by the Court of Wards. The appellants and their sister applied for partition of their share in the joint property, and for accounts for the period during which Ali Kabir was in charge of the property. Acting under Section 58 of the Court of Wards Act, the Court of Wards appointed one Sri Bhagwan Das Bhargava as Arbitrator to settle the dispute. Sri Bhargawa made a preliminary award on 14-10-1949, and gave his final award on 30-3-1950. That award was made over to the Court of Wards. The Court of Wards was wound up in April 1954. On 20-1-1955 Ali Dabir and Ali Mushir moved, in the Court of the Civil Judge, Gorakhpur, an application containing the following prayer:

'The applicants being entitled to it desire that after summoning the original award from the Assistant Custodian, Evacuee Property, Gorakhpur, who holds it on behalf of the parties, the same may be made the rule of the Court under Section 17 of the Arbitration Act.

It is therefore prayed that the aforesaid award may be made the rule of the Court, and a decree in favour of the applicants be passed on its basis.'

It may be mentioned here that, certain members of this family were evacuees. The estate was taken over by the Assistant Custodian, Evacuee Property, Gorakhpur. That was why the award dated 30-3-1950 was in the possession of the Assistant Custodian, Evacuee Property. The Court summoned the award from the Assistant Custodian, Evacuee Property.

3. The appellants' application dated 20-1-1955 was opposed by Ali Kabir and others. They raised a number of preliminary objections. The main preliminary objections were that, the application dated 20-1-1955 was barred by time; and the award made under the Court of Wards Act could not be made a rule of the Court under the Arbitration Act. The learned Civil Judge decided the first point in favour of the applicants. It was held that the application under Section 17 of the Arbitration Act was not barred by time. But the second point was decided by the Court against the applicants. It was held that the award could not be enforced under the provisions of the Arbitration Act. The application was, therefore, dismissed on 24-2-1956. This appeal is directed against the order of the learned Civil Judge, Gorakhpur dated 24-2-1956.

4. The appeal was heard by a Division Bench of this Court. Mr. Justice B. Dayal was of the opinion that, the appeal fails. But Mr. Justice Takru was of the opinion that, the appeal, treated as a revision, should be allowed; and the case should be remanded to the lower Court. In view of this difference of opinion, the case has been referred to me for my opinion.

5. The first question for consideration is whether the appeal is maintainable. Mr. Jagdish Swamp, appearing for the appellants, relied upon Syed Hasan Ali v. Askari Begum : AIR1959All777 . In that case an application under Section 14 of the Arbitration Act was filed in Court. In pursuance of that application, the award was filed in Court. One of the parties filed objections against the award. The Court, adjudicated on those objections after going into the matter. The trial Court finally dismissed the application for filing the award. Sayed Hasan Ali filed an appeal against the trial Court's order. The respondent raised a preliminary objection to the hearing of the appeal. It was contended that the appeal was not maintainable under Section 39 of the Arbitration Act. The preliminary objection was overruled by this Court. The appeal was entertained and allowed.

6. In that case the respondent filed objections on the merits of the award, the Court adjudicated on those objections after going into the matter. It was then that the Court dismissed the application for filing the award. The order of the trial Court was in substance an order setting aside the award. That order was, therefore, appealable. In the present case the learned Civil Judge, Gorakhpur has not pronounced on the merits or validity of the award. All that he has decided is that, it is impossible to implement the award under the Arbitration Act. This is not an order setting aside an award. The facts of the present case are different from those in Sayed Hasan Ali's case.

7. This is an appeal against an order dismissing an application under Section 17 of the Arbitration Act. Section 39 of the Arbitration Act enumerates appealable orders. As already explained, the impugned order is not an order setting aside an award. I The present appeal is not covered by any of the six clauses mentioned in Sub-section (1) of Section 39 of the Arbitration Act, No appeal lies against the order of the learned Civil Judge, dated 24-2-1956.

8. Although the appeal is not maintainable, the learned Judges of the Division Bench were prepared to treat the appeal as a revision. I, therefore, proceed to consider whether the appellants can get any relief under Section 115, C. P. C.

9. As already mentioned, the main question for consideration in this appeal is whether an award made under Section 58, Court of Wards Act can be made a rule of the Court under Section 17 of the Arbitration Act.

10. Section 58, Court of Wards Act lays down procedure for arbitration in cases between wards, and runs thus:

'(i) When it appears to the Court of Wards that any question or dispute arising between two or more wards is a fit subject for reference to arbitration, it may appoint a representative on behalf of each such ward and require the said representatives to submit the question or dispute to the arbitration of such person or persons as it may approve.

(2) A reference to arbitration made in accordance with Sub-section (i) shall take effect in the same manner, and have the same consequences, as a reference, made by persons who are not wards of Courts.'

According to Sub-section (2) of Section 58, an award made under this section has the same consequences as an award made upon a reference by persons, who are not under any disability. In 1912 the Code of Civil Procedure contained the Second Schedule dealing with arbitration. Paragraph 20 of the Second Schedule to the Code of Civil Procedure provided for filing an award in a case of arbitration without intervention of Court. Paragraph 21 of the Second Schedule provided for enforcement of such award. The Second Schedule to the Code of Civil Procedure has been repealed by the Arbitration Act. But similar provisions are to be found in the Arbitration Act itself.

11. Mr. Ambika Prasad appearing for the respondents, pointed out that, in a case governed by Section 58, Court of Wards Act, all the wards are under the superintendence of the same Court of Wards. It was, therefore, contended that it is not practicable to enforce such an award under the Arbitration Act.

12. This aspect of the matter came up for consideration before the Court in Amar Krishna v. Deputy Commr., Barabanki : AIR1958All710 . In that case there was a compromise between two contesting wards. Both the estates were in charge of the same Deputy Commissioner. It was held that, it cannot be said that there are no two parties to the compromise.

13. That decision was upheld by the Supreme Court in Drigraj Kuer v. A.K. Narain Singh : [1960]2SCR431 . It was held that, the Court of Wards Act contemplates a contract between two wards. They can effect a compromise between them. The compromise was between two wards, who were real parties to the dispute. So the contention that there was no compromise because there were not two parties to it could not be accepted as correct.

14. Section 46 of the Arbitration Act lays down that, the Act applies to statutory arbitrations also. Section 46, Arbitration Act states:

'The provisions of this Act, except Sub-section (1) of Section 6 and Sections 7, 12, 36 and 37 shall apply to every arbitration under any other enactment for the time being in force, as if the arbitration were pursuant to an arbitration agreement and as if that other enactment were an arbitration agreement except in so far as this Act is inconsistent with that other enactment or with any rules made thereunder.'

Mr. Ambika Prasad urged that, the Arbitration Act applies to statutory arbitrations except in so far as the Act is inconsistent with the other enactment. It was contended that the Arbitration Act is inconsistent with the Court of Wards Act.

15. In support of this contention, Mr. Ambika Prasad relied upon Sections 53, 55 and 57 of the Court of Wards Act. According to Section 53, Court of Wards Act, exercise of discretion by the Court of Wards cannot be questioned in Civil Court. According to Section 55, Court of Wards Act, a suit in a Civil Court must be in the name of the Collector. Section 57, Court of Wards Act provides for statement of case for opinion by Civil Court, and runs thus:

'(1) Where any question arises as between two or more wards of such nature that an adjudication upon it by a civil Court is expedient it shall be lawful for tie Court of Wards to appoint a representative on behalf of each ward. The representative so appointed shall prepare a statement containing the point or points for determination and shall on behalf of the said wards file the statement in a civil Court having jurisdiction in the form of a case for the opinion of the said Court.

(2) The civil Court shall then proceed to hear and dispose of the case in the manner prescribed by the Code of Civil Procedure, 1908, for the bearing and disposal of suits.

(3) The case shall be conducted on behalf of the wards by their representatives appointed under Sub-section (i) of this section subject to the general control of the Court of Wards.'

Sections 53, 55 and 57 of the Court of Wards Act have little bearing on the question of the alleged inconsistency between the Court of Wards Act and the Arbitration Act. We have to consider whether it is possible for the Civil Court to pass adecree on the basis of an award made under Section 58, Court of Wards Act, For deciding thispoint, some guidance can be obtained from Section 57,Court of Wards Act. According to Sub-section (2)of Section 57, Court of Wards Act, the Civil Court hasto dispose of the case as if it is a suit. In a suitthe Civil Court pronounces judgment, and passesa decree. It, therefore, appears that, when a casecomes up before a Civil Court for opinion underSection 57, Court of Wards Act, the Court has to givejudgment and pass a decree.

16. This view finds support from the corresponding provisions in the Code of Civil Procedure.Section 90, C. P. C. provides for special case. Section 90, C. P. C. states:

'Where any persons agree in writing to state a case for the opinion of the Court, then the Court shall try and determine the same in the manner prescribed.'.

Order XXXVI of the Code of Civil Procedure contains the prescribed procedure for dealing with a special case. Rule 5 of Order XXXVI, C. P. C. deals with the hearing and disposal of the case. Sub-rule (2) of Rule 5 of Order XXXVI, C. P. C. states:

'Where the Court is satisfied......it shall proceed to pronounce judgment thereon in the same way as in an ordinary suit, and upon the judgment so pronounced a decree shall follow.'

It, therefore, appears that, when a Civil Court receives a special case under Section 90, C. P. C. read with Order XXXVI, C. P. C., it has to pronounce judgment and pass a decree.

17. Similarly, when a case is staged for opinion of the Civil Court under Section 57, Court of Wards Act, the Civil Court has to pronounce judgment and pass a decree. If a Civil Court can pass a decree under Section 57 of the Court o Wards Act, there should be no difficulty in passing a decree upon an award under Section 58, Court of Wards Act read with Section 17, Arbitration Act.

18. Neither the Court of Wards Act nor the Rules framed under the Act contains any separate provision for enforcing an award made under Section 58 of the Act. It is unlikely, that the legislature intended that, there should be no machinery for enforcement of an award prepared under Section 58 Court of Wards Act. Both Section 58, Court of Wards Act and Section 46, Arbitration Act point out that, the provisions of the Arbitration Act apply to a statutory arbitration under Section 58, Court of Wards Act. The learned Civil Judge was wrong in supposing that, an award made under Section 58, Court of Wards Act can never be implemented under Section 17 of the Arbitration Act.

19. However Mr. Ambika Prasad raised another point about maintainability of the applicant's application dated 20-1-1955. Mr. Ambika Prasad contended that, in the present case the award was not filed by the Arbitrator as required by Section 14(2), Arbitration Act. So it was not possible to implement the award under Section 17, Arbitration Act.

20. Sub-section (2) of Section 14, Arbitration Act provides for filing of award, and runs thus:

'The arbitrators or umpire shall, at the request of any party to the arbitration agreement or any person claiming under such party or if so directed by the Court and upon payment of the fees and charges due in respect of the arbitration, and award and of the costs and charges of filing the award, cause the award or a signed copy of it, together with any depositions and documents which may have been taken and proved before them, to be filed in Court, and the Court shall thereupon give notice to the parties of the filing of the award.'

In Jai Kishen v. Ram Lal Gupta, AIR 1944 Lah 398 the Arbitrators handed over the award to the petitioner. The petitioner applied to Court for making the award a rule of the Court. The respondent objected on the ground that the application was barred by limitation. That objection prevailed; and the petitioner's application was dismissed. He went up in revision. The revision was allowed by Lahore High Court. The case was remanded to the trial Court for disposal on merits. It was observed on page 400:

'A feeble attempt was made by Mr. Shamair Chand, the learned counsel for the respondent, in the end to contend that if I were of the view that this application was not under Section 14, Arbitration Act, it would not be competent at all and so liable to be dismissed as not being provided by the Arbitration Act. But the Arbitration Act is not, in my opinion, exhaustive in the sense that an application like this could be thrown out as incompetent in the absence of a clear provision in the Act.'

It appears that in Jai Kishan's case, AIR 1944 Lah 398 the main objection of the respondent was as regards limitation. The respondent did not seriously object to the manner of the filing of the award.

21. In Radha Kishan v. Madho Krishna : AIR1952All856 the parties were brothers. Their dispute was referred to arbitration. An award was made. Madho Krishna made an application purporting to be under Section 17, Arbitration Act, praying that a judgment might be pronounced according to the award. Eadha Kishan raised several objections. The objections were overruled by the Civil Judge, who pronounced a judgment in accordance with the award. Radha Kishan's appeal was dismissed by the High Court,

22. In that case also the main objection by Radha Kishan was as regards limitation. He does not appear to have raised the point that, the award filed by Madho Krishna had not been filed as required by Section 14(2), Arbitration Act.

23. In Kumbha Mawji v. Dominion of India : [1953]4SCR878 it was held that, Section 14(2), Arbitration Act clearly implies that where the award is in fact filed into Court by a party, he should have the authority of the umpire for doing go. Where the awards are handed over by the umpire to the party, it cannot be assumed that the mere handing over of the awards unnecessarily implies the authority of the umpire to file the same into Court on his behalf. That authority has to be specifically alleged and proved. In the absence of such authority, the filing of the awards by the party cannot be the filing by the umpire. Under Section 14(2), the actual filing by the umpire is not essential. It is sufficient if the umpire causes the award to be filed.

24. In Kumbha Mawji's case : [1953]4SCR878 the umpire handed over the award to the applicant. The applicant filed it in Court. In the present case the Arbitrator did not hand over the award to the appellants. The appellants were unable to file the award in Court. The award had to be summoned from the Assistant Custodian, Evacuee Property. So, from the appellants' point of view, the present case is weaker than the case of Kumbha Mawji.

25. In Amod Kumar v. Hari Prasad : AIR1958All720 it was held by a Division Bench of this Court that Section 17, Arbitration Act does not confer jurisdiction upon a Court to pass a decree on the basis of an award regardless of whether its jurisdiction had been invoked under Section 14 by the Arbitrator's filing the award or by any party's application for its being filed. A Court before which an award has been produced for any reason has no jurisdiction to pass a decree on its basis merely because it had jurisdiction to decide the question forming the subject-matter of the reference. If an award is produced before a Court for supplying proof of handwriting, it would have no jurisdiction to pass a decree on its basis. Sections 15, 16 and 17 prescribed the acts that can. be done by the Court in which the award has been filed under Section 14(2). The four sections are to be read as connected with one another. When a definite procedure from the filing of an award up to the making of a decree is laid down in the Chapter dealing with arbitration without intervention of a Court, and it contains no provision expressly allowing a decree to be passed in any other manner, it follows that a decree can be passed under Section 17 only in a case starting with the filing of the award under Section 14.

26. I was at first inclined to take the view that, the exact manner of filing the award is not a matter of much importance. If an award comes before a Court and the Court is satisfied about its validity, the Court may proceed to make the award a rule of the Court under Section 17, Arbitration Act. But I am bound by the decision of the Supreme Court in Kumbha Mawji's case : [1953]4SCR878 and the decision of this Court in Arnod Kumar's case : AIR1958All720 . According to these authorities, a Court cannot act under Section 17, Arbitration Act, unless the award has been filed in Court in accordance with the procedure laid down in Sub-section (2) of Section 14, Arbitration Act. In the present case, the Arbitrator took no part in filing the award in the Court of the Civil Judge. Some time back, the Arbitrator handed over the award to the Court of Wards. The Court of Wards made over the award to the Assistant Custodian, Evacuee Property. The Civil Judge summoned the award from the Assistant Custodian, Evacuee Property. That is how the Award dated 30-3-1950 reached the Court of the Civil Judge. Since the award was not filed in the manner prescribed by Sub-section (2) of Section 14, Arbitration Act, the learned Civil Judge could not enforce the award under Section 17, Arbitration Act.

27. The learned Civil Judge dismissed the appellant's application dated 20-1-1955 on the ground that an award under Section 58, Court of Wards Act can never be enforced under the Arbitration Act. That view is not correct. But the impugned order dated 24-2-1956 can be supported on another ground. That ground is that, the award was not filed in Court in the manner laid down in Section 14(2), Arbitration Act.

28. Firstly, the appeal is not maintainable. Secondly the learned Civil Judge could not grant any relief under Section 17, Arbitration Act, because the award was not filed in accordance with the procedure laid down in Section 14(2), Arbitration Act. For these reasons, this appeal has to be dismissed. The appellants have succeeded in establishing that, the reason given by the learned Civil Judge for dismissing the application under Section 17, Arbitration Act is not sound. The subsidiary point, on which the appeal is being dismissed, does not appear to have been argued by the respondents before the learned Civil Judge. Under the circumstances, parties may be directed to bear their own costs.

29. In my opinion, the appeal should be dismissed. Parties may be directed to bear their own costs in both the Courts.

30. Let the papers be returned to the Division Bench with this opinion.


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