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Hari Shankar Vs. Ram Piari and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in(1923)ILR45All441
AppellantHari Shankar
RespondentRam Piari and ors.
Excerpt:
civil procedure code, schedule ii, paragraphs 15 and 16 - suit for partition--suit referred to arbitration in absence of one defendant who failed to appear--decree in accordance with award--appeal. - - as shankar lal had failed to file a written statement within the time allowed by the first court, a rubkar dated the 1st of february, 1919, was drawn up by the presiding officer of the court directing that the proceedings against shankar lal be ex parte. and if the award is vitiated because of the fact of shankar lal not joining in the reference, the entire decree of the court below is bad and should be set aside......two appeals nos. 391 and 392 of 1920 are connected inasmuch as they arise out of a suit brought by hari shankar on the 11th of december, 1918, in the court of the subordinate judge of meerut for partition. hari shankar alleged in his plaint that he and shankar lal were the sons of pandit ram chandar who was the brother of pandit chajju mal. the family was joint and no partition of the family property had taken place. hari shankar did not propose to remain joint with his uncle chajju mal and, therefore, claimed partition. among the array of defendants was shankar lal, the brother of the plaintiff. shankar lal put in no written statement. the other defendants resisted the suit by filing written statements and raisins various pleas. as shankar lal had failed to file a written statement.....
Judgment:

Muhammad Rafiq and Lindsay, JJ.

1. The two appeals Nos. 391 and 392 of 1920 are connected inasmuch as they arise out of a suit brought by Hari Shankar on the 11th of December, 1918, in the court of the Subordinate Judge of Meerut for partition. Hari Shankar alleged in his plaint that he and Shankar Lal were the sons of Pandit Ram Chandar who was the brother of Pandit Chajju Mal. The family was joint and no partition of the family property had taken place. Hari Shankar did not propose to remain joint with his uncle Chajju Mal and, therefore, claimed partition. Among the array of defendants was Shankar Lal, the brother of the plaintiff. Shankar Lal put in no written statement. The other defendants resisted the suit by filing written statements and raisins various pleas. As Shankar Lal had failed to file a written statement within the time allowed by the first court, a rubkar dated the 1st of February, 1919, was drawn up by the presiding officer of the court directing that the proceedings against Shankar Lal be ex parte. Subsequently on the 10th of June, 1920, all the parties to the litigation with the exception of Shankar Lal signed an agreement referring the dispute to the arbitration of Chaubey Radhe Lal. Shankar Lal declined to sign the agreement and wanted the court to decide the case itself. The matter was referred to Chaubey Radhe Lal who gave his award on the 2nd of September, 1920. The plaintiff and Shankar Lal filed objections on the 11th of September, 1920, objecting to the award. Shankar Lal objected on the ground that he was no party to the reference and therefore the award was invalid. Har Shankar, the plaintiff, took the same objection as also others, line learned Subordinate Judge disallowed the objections of the two brothers and passed a decree in terms of the award. The two brothers Hari Shankar, the plaintiff, and Shankar Lal, one of the defendants, have preferred two appeals before us.

2. The learned Counsel for the respondents takes a preliminary objection to the appeals to the effect that no appeals lie in view of the provisions of Sections 15 and 16 of the second schedule of the Code of Civil Procedure. In support of his contention the cites the case of Lutawan v. Lachya (1913) I.L.R. 36 All. 69 a Full Bench ruling of this Court. It is contended on behalf of the respondents that under the law objections, if any, should be taken by the parties objecting to the validity of the award in the court in which the award is filed; and in case those objections are disallowed or any objections are omitted or none taken, no appeal can lie on the ground that the award was invalid. The only ground upon which an appeal would lie from a decree passed upon the award would be a case where the decree is either not in accordance with the award or is in excess of the award. In the present case the objection that is urged now before the Court was urged in the court below and was rejected. The two appellants do not challenge the decree of the lower court on the ground that the decree is in excess of the award or is not in accordance with it. For the two appellants, Hari Shankar and Shankar Lal, it is contended that as Shankar Lal was no party to the reference and as the dismissal of the claim of Hari Shankar affects the question of the character of the family, i.e., whether it was joint or divided, and hence affects the rights of Shankar Lal also, the decree should not be considered to be binding upon Shankar Lal. And if the award is vitiated because of the fact of Shankar Lal not joining in the reference, the entire decree of the court below is bad and should be set aside. The contention for the two appellants is not sustainable in view of the Full Bench ruling of this Court cited above. The learned Counsel for the appellants wishes to cite the case law of other High Courts which is not in consonance with the view taken in the Full Bench case of this Court. We think we are bound by the case of our own Court and we should follow it. We must, therefore, give effect to the preliminary objection on behalf of the respondent and hold that the two appeals are not maintainable. We, therefore, dismiss them with costs.


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