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Debi Das and ors. Vs. Keshava Deo - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1945All423
AppellantDebi Das and ors.
RespondentKeshava Deo
Excerpt:
- - they give full power to the arbitrator to decide the case to the best of his light and judgment and in any manner he deemed proper.sinha, j. 1. these are two applications in revision against an order of the learned civil judge of aligarh by which he repelled certain objections to an arbitration award and passed a decree in terms thereof. one bhawani das had three sons, debi das, dhori mal and kishori lal. bhawani das and his sons made a mortgage of their residential house in favour of the opposite party, keshav deo, for a sum of rs. 2000. this mortgage was granted on 22nd december 1933, and on 19th december 1939, the mortgagee put his mortgage in suit against the sons and grandsons of the deceased bhawani das, for a sum of rs. 3,391-12-0. the defence, in the main, was that full consideration did not pass and, at all events, the debt was not justified by legal necessity. on 25th february 1941, the learned munsif.....
Judgment:

Sinha, J.

1. These are two applications in revision against an order of the learned Civil Judge of Aligarh by which he repelled certain objections to an arbitration award and passed a decree in terms thereof. One Bhawani Das had three sons, Debi Das, Dhori Mal and Kishori Lal. Bhawani Das and his sons made a mortgage of their residential house in favour of the opposite party, Keshav Deo, for a sum of Rs. 2000. This mortgage was granted on 22nd December 1933, and on 19th December 1939, the mortgagee put his mortgage in suit against the sons and grandsons of the deceased Bhawani Das, for a sum of Rs. 3,391-12-0. The defence, in the main, was that full consideration did not pass and, at all events, the debt was not justified by legal necessity. On 25th February 1941, the learned Munsif decreed the suit for Rs. 1500, principal, and the balance on account of interest, total Rs. 2543. He held that, out of the sum of Rs. 2000, Rs. 500 left in the hands of the mortgagee to discharge the debt, on the basis of a promissory note, was never paid, in as much as the promissory note was a fictitious transaction. Both the parties were dissatisfied with this decree and both challenged it by means of two appeals. On 8th January 1942, the matter was referred to the arbitration of a member of the Bar, Rai Bahadur Sohan Lal. The terms of reference were very wide and the arbitrator had authority under them to hold inquiries, either open or confidential, and decide the case accordingly. The arbitrator was allowed time to return the award by 10th February 1942. It appears that some of the defendants, who are Nos. 5 and 8 before us, were minors and a lawyer of the name of Mr. Beni Ram Gupta was appointed as their guardian. Mr. Beni Ram Gupta, on 23rd January 1942, prayed for some fee. The learned civil Judge passed the following order: 'Ask the vakil to arrange payment.' No payment was made till 15th April 1942. But the arbitrator had returned the award before that date. Indeed, he had done so on 28th February 1942, after the extension of time granted to him by the learned civil Judge.

2. Exception was taken to this award on behalf of the minors, with which alone we are concerned at this stage, that the arbitrator did not give them any notice of the proceedings, nobody represented them and their interests were not properly safeguarded. The learned civil Judge has, as already mentioned, repelled these objections and passed a decree in terms of the award. The defendants have come before us in revision. There can be no doubt that the terms of the reference were very wide. They give full power to the arbitrator to decide the case to the best of his light and judgment and in any manner he deemed proper. In Husain Bakhsh v. Lachhman Das Mathra Das ('22) 9 A.I.R. 1922 All. 69 where the power given to the arbitrator was in terms almost similar to the terms in the present case, this Court held that:

the action on the part of the arbitrator did not amount to legal misconduct, as it was authorised under the wide powers given by the agreement of reference.

3. In a later case, Aftab Begam v. Abdul Majid Khan ('24) 11 A.I.R. 1924 All. 800 a Bench of this Court has put the matter, if we may say so with great respect, very succinctly and held that:

The attack on this award is really an attack upon the substance which the arbitrators have decided. They may be right, they may be wrong, it is no business of the Court. Judges cannot be reminded too often that an arbitration, in substance, ousts the jurisdiction of the Court except for the purpose of controlling the arbitrators and preventing misconduct, and for regulating the procedure after the award. So far as the hearing of the merits is concerned and the decision contained in the award, the Court has nothing to say good, bad or indifferent. It has no right to review it or to consider it, and in substance what the Court below has done in this case, has been to hear an appeal from the arbitrator...

4. On the principles laid down in the above authorities, there can be no doubt that the award of the arbitrator is not open to challenge, on the grounds taken by the defendants. We, therefore, dismiss these applications. We must, however, say that in this case, we do not feel justified in awarding costs to the opposite party. Several of the applicants are minors. They had secured a distinct finding from the learned Munsif that Rs. 500, due on the basis of a promissory note, was never paid by the mortgagee. The arbitrator held otherwise. In this state of conflicting findings, the matter must remain shrouded in obscurity. We, therefore, think that this is a fit case in which the parties should be directed to bear their own costs throughout.


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