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Mangal Sen and anr. Vs. Prag Das and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtAllahabad
Decided On
Reported inAIR1931All725
AppellantMangal Sen and anr.
RespondentPrag Das and anr.
Excerpt:
- .....and that the arbitrators were guilty of legal misconduct. the court allowed the transfer of the name of prag das, but dismissed the application. later on it retransferred the name of prag das to the array of the defendants. the matter came up to the high court and a bench of this court was of opinion that prag das should have been given an opportunity to lead evidence. no question of limitation was pressed before the high court and none was decided. the case was sent back to the court below for disposal.2. we are prepared to assume in favour of the appellants that it is still open to them to plead that the application of prag das was barred by time.3. the application for the filing of the award had been filed by mt. sarju dei within time. it was obviously a representative-application.....
Judgment:

Sulaiman, Ag. C.J.

1. This is a first appeal from an order filing an award. The parties who had referred their dispute to arbitration out of Court were Mt. Sarju Dei, the widow of Jawala Prasad, her sons Mangal Sen and Ram Bharose and a stepson Prag Das. The award was made on 14th September 1926. An application to file the award was filed on behalf of Mt. Sarju Dei only on 9th March 1927. She made the other parties to the reference as parties to the proceedings. Prag Das filed a written statement alleging that Mt. Sarju Dei had filed the application in collusion with her sons and that it was possible that she might not prosecute it with due diligence. This was followed by an application made on his behalf on 2nd November 1927 in which he prayed that his name may be transferred from the array of the opposite party to that of the applicants. On this Mangal Sen and Ram Bharose took a further objection that the application of Prag Das was barred by time. In their previous written statement Mangal Sen and Ram Bharose had pleaded that one of them was a minor at the time of the reference and that the arbitrators were guilty of legal misconduct. The Court allowed the transfer of the name of Prag Das, but dismissed the application. Later on it retransferred the name of Prag Das to the array of the defendants. The matter came up to the High Court and a Bench of this Court was of opinion that Prag Das should have been given an opportunity to lead evidence. No question of limitation was pressed before the High Court and none was decided. The case was sent back to the Court below for disposal.

2. We are prepared to assume in favour of the appellants that it is still open to them to plead that the application of Prag Das was barred by time.

3. The application for the filing of the award had been filed by Mt. Sarju Dei within time. It was obviously a representative-application in the interest of all the persons concerned. Mt. Sarju Dei was not claiming any right in herself independently of the other parties to the award, her prayer being that the award itself be filed. It is therefore clear that if the award were to be filed and a decree passed in terms of it, the benefit of it would go to all the parties in whose favour it stood. The application was accordingly a representative application and must be deemed to have been filed in the interest of all concerned. The application of Prag Das was merely for the transposition of his name from one side to the other in order to prevent the dismissal of the application for default owing to collusion. The original application remained pending and we cannot consider the transfer of the name of the defendant as amounting to a fresh application on behalf of the defendant.

4. If it were a suit Section 22, Limitation Act, would be applicable and it would expressly exclude the bar of limitation from the case of transposition of names.

5. An application for filing an award is required by Schedule 2, para. 20, Civil P. C., to be registered as a suit, and the parties to be treated as plaintiff and defendant. We may assume that although for all practical purposes the application is a suit nevertheless it just falls short of being a suit so as to make Section 22, Limitation Act, applicable. At the same time there is no provision of law which requires that transfer of names of parties necessarily amounts to the filing of a fresh application. Following the principle underlying suits, and on their analogy, we have no hesitation in saying that in the absence of any express provision of law laying down the contrary rule, the mere transfer of the name of Prag Das from one side to the other did not) amount to the filing of a fresh application so as to create a bar of limitation against him.

6. It is not necessary for us to express any opinion on the view expressed by the Patna High Court in Chandrika v. Ram Kuer A.I.R. 1923 Pat. 88, for that case is obviously distinguishable. An application under Order 9, Rule 13, Civil P. C, may not necessarily be a representative application. The applicant has to show sufficient cause for his own non-appearance, and there is always a possibility that the decree may be sat aside as against the applicant only.

7. We accordingly overrule the plea of limitation.

8. Coming to the merits, we think that the appeal has absolutely no force. There are the usual allegations of misconduct add collusion, want of proper opportunity to produce evidence and irregularities in procedure. But the fact remains that the award was pronounced in the presence of all the parties and as deposed to by the umpire, it was signed by both the defendants, and it was afterwards registered. The umpire has stated that no one took any objection to the award. Defendant 2 denied having signed it, but we prefer to believe the evidence of the plaintiff on this point. One of the arbitrator gives evidence in favour of the defendants, but he was a connexion by marriage of theirs. His evidence has been disbelieved by the Court below. Having considered the whole case we are of opinion that the learned Subordinate Judge has taken the right view in holding that all the parties consented to the award and acquiesced in it. The award was therefore not in any way invalid.

The appeal is dismissed with costs.


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