1. One Babulal Taliwal obtained a decree against Shiamlal and Kishun Prasad, father and son for a sum of Rs. 6000 from the High Court of Bombay in the year 1936. In the same year, the decree was transferred to the Court of the Civil Judge, Aligarh, for execution. Several objections were taken to the execution of the decree by the judgment-debtors, but these objections were dismissed and the appeals against them were dismissed by this Court. After the disposal of the objections, the decree was executed and several items of property belonging to the judgment-debtors were sold on 8-2-1939. Certain objections were filed to the sale under Order 21, Rule 90, Civil P.C. In September 1910 the objections were dismissed for default and on 25-9-1940, the sale was confirmed and thereafter the appellant Munnilal alias Rup Kishore, who had purchased the property at an auction, obtained possession of the property. It is said that after having obtained possession of the property, the auction purchaser spent a sum of about 5000 in rebuilding the house. Some time after 25-9-1940, an application was made by Shiamlal and Kishun Prasad for restoration of their objections which they had filed under Order 21, Rule 90, Civil P.C. At this stage on 12-12-1940, the parties appointed Mr. Misrilal, advocate, an arbitrator to decide the application for restoration as well as the objections under Order 21, Rule 90, Civil P.C. On 6-3-1941 Mr. Misrilal gave his award by which he set aside the order of dismissal for default of the objections under Order 21, Rule 90. He, however, held that the objections had no force as there was no material irregularity in conducting the sale and the price fetched at auction was adequate. He, therefore, dismissed the objections on merits.
2. The judgment-debtors filed objections to the award but on 13-12-1941, a fresh settlement was arrived at between the parties and statements were made on behalf of both the judgment debtors, Shiamlal and Kishun Prasad, that the objections to the award be dismissed. Kishun Prasad again came forward with the allegation that the settlement of 13-12-1941 had been entered into by his counsel without his authority and his objections should, therefore, be heard on the merits. On 16-5-1942, the learned Judge granted this objection and on 12-9-1942 the objections of Kishun Prasad to the award were restored on payment of Rs. 5 as costs. The learned Counsel for the appellant has stated that the sum of Rs. 5 was never paid. On 8-8-1942, the objections of Kishun Prasad under Order 21, Rule 90, Civil P.C. were again dismissed for default. On 12-9-1942, however, it was again restored and on 26-8-1943 the learned Judge came to the conclusion that no reference could be made to an arbitrator by a Court executing a decree and the award was there fore void-the reference itself being illegal. On the merits he decided in favour of the appellant that the award was not vitiated by any misconduct on the part of the arbitrator. The auction-purchases has filed this appeal under Section 39, Arbitration Act. The only point for decision in this case is whether a civil Court executing a decree has jurisdiction to refer the dispute between the parties to arbitration.
3. The lower Court has relied on a ruling of the Calcutta High Court in T. Wang v. Sona Wangdi : AIR1925Cal812 sic was held that a Court executing a decree cannot refer the objection of the judgment-debtor, that the decree was satisfied out of Court, to arbitration and the; award made by the arbitrator was invalid and unenforceable. The basis of the 'decision is that para. 1 of Schedule 2, empowers' reference to arbitration of a dispute between the parties to a suit and Section 16 of Schedule ' 2 provides that a decree should follow the award.
4. Following the previous decision of their own Court and a decision of the Madras Court the Bench came to the conclusion that 0. 21, relating to execution is self-contained and exhaustive and the special procedure relating to suits including reference to arbitration was not applicable to execution proceedings. This decision was followed by a learned Single Judge of this Court in Bachanlal v. Amar Singh 22 A.I.R 135 All. 125. A Bench of this Court, however, in Mahommad Habibullah v. Tikamchand : AIR1925All276 has held that
the word 'suit' as used in Section 24, Civil P.C. includes execution proceedings and a Court can under Section 24 transfer an application for execution from one Court to another.
In Jafar v. Abdul Ghafoor ('43) 30 A.I.R. 1943 Oudh. 304, a learned Single Judge of the Oudh Chief Court has held that there is no reason to restrict the meaning of the word 'suit' in Section 21 in such a way as to exclude execution proceedings which are only a continuation of the suit.
5. We have had occasion to consider this matter carefully in civil Revn. No. 640 of Balram Singh v. Dudhnath Civil Revn No. 540 of 1945, D/-11-3-1948. We are of the opinion that it is not necessary to give such restricted meaning to the word 'suit' as to exclude execution proceedings, appeals and other proceedings before the civil Court which are in the nature of suits in which civil Courts decide disputes between the parties of a civil nature. We have further said that even if we were of the opinion that the Arbitration Act did not apply, there seemed to be no valid ground for refusing to record the compromise under Order 23, Rule 1, Civil P.C. as a valid adjustment between the parties.
6. In Zumaklal Motiram v. Fulchand Tarachand ('41) 28 A.I.R. 1941 Bom. 20, a Bench of the Bombay High Court has held that an adjustment of a claim with the assistance of an arbitrator may be recorded as valid adjustment and the procedure prescribed in Schedule 2 may be applied to it. They distinguished the decision of the Calcutta High Court in T. Wang v. Sona Wangdi : AIR1925Cal812 on the ground that the Court had not considered the award as a valid adjustment to an existing decree.
7. Mr. C.B. Agarwala on behalf of the respondent has urged that the appeal is not competent. We have already said that the appeal was filed under Section 39, Arbitration Act and if the Arbitration Act applies the appeal would be clearly maintainable under that provision. sic were to hold that no appeal lies, we can interfere in this case in our revisional jurisdiction. There was a valid adjustment of the decree under Order 21, Rule 2, Civil P.C. It was the duty of the Court to have recorded the adjustment. The Court having refused to do so on the ground that it has no jurisdiction the revision would clearly be maintainable under Section 115, Civil P.C., The appeal is therefore allowed. The order of the lower Court is set aside. The appellant is entitled to his costs, in both the Courts.