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Jani Durlabh Shankarji and ors. Vs. Jani Lajja Shankarji and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in2Ind.Cas.858
AppellantJani Durlabh Shankarji and ors.
RespondentJani Lajja Shankarji and ors.
Excerpt:
civil procedure code (act xiv of 1882), sections 518, 588(26) - order amending award--appeal--court's power to amend and correct award. - - in the petition filed by the parties it is distinctly stated that the arbitrator shall have no power to interfere with the decision of the court upon such points at issue as it had already settled and that he should decide the remaining points in dispute subject to the adjudication, made by the court. the arbitrator found that the garden was not endowed property but in spite of this finding he declared that it should not be partitioned but should 'continue like endowed property......issues was issue no. 5 which was as follows: 'is the garden situate near achal talab near aligarh endowed property. is it partible or not.' it is this garden about which the parties are in dispute at present. the arbitrator found that the garden was not endowed property but in spite of this finding he declared that it should not be partitioned but should 'continue like endowed property.' the learned subordinate judge amended so much of the award as declared the garden to be impartible and it is from this order of the subordinate judge that the present appeal has been preferred. section 518 of act xiv of 1882 empowers the court to modify or correct an award where it appears that a part of the award is (a) upon a matter not referred to arbitration and (b) where the award is imperfect in.....
Judgment:

1. This is an appeal from an order passed under Section 518 of Act XIV of 1832 amending an award of arbitrators. A preliminary objection was taken to the hearing of the appeal on the ground that as the Court has already passed a preliminary decree in. the suits an appeal does not lie from the order under Section 518. We are unable to accede to this contention. Section 588 Clause (26) allows an appeal from an order under Section 518 modifying an award. The fact that on the date on 'which the Court passed an order modifying the award it finally decided the suit and made a decree, cannot take away the right of appeal which the law confers on a party. We, therefore, overrule the preliminary objection.

2. On the merits of the case we think the appeal is without substance. The suit was one for partition and three issues were determined by the Court itself. There were several other issues which had also to be determined and as regards these the parties agreed that they should be referred to the arbitration of one Lachmi Narain Dube. In the petition filed by the parties it is distinctly stated that the arbitrator shall have no power to interfere with the decision of the Court upon such points at issue as it had already settled and that he should decide the remaining points in dispute subject to the adjudication, made by the Court. In accordance with this petition the case was referred to arbitration by an order dated the 8th of August 1907 and the order is to the effect that the arbitrator should decide the case subject to the decision pronounced by the Court on the 9th and 22nd of May 1907. The arbitrator in his award states that certain issues framed by the Court had been referred to him for decision. One of these issues was issue No. 5 which was as follows: 'Is the garden situate near Achal Talab near Aligarh endowed property. Is it partible or not.' It is this garden about which the parties are in dispute at present. The arbitrator found that the garden was not endowed property but in spite of this finding he declared that it should not be partitioned but should 'continue like endowed property.' The learned Subordinate Judge amended so much of the award as declared the garden to be impartible and it is from this order of the Subordinate Judge that the present appeal has been preferred. Section 518 of Act XIV of 1882 empowers the Court to modify or correct an award where it appears that a part of the award is (a) upon a matter not referred to arbitration and (b) where the award is imperfect in form or contains any obvious error. It is manifest that the award in this case contains an obvious error. The arbitrator having found that the garden was not endowed property, his decision that it should not be partitioned was obviously wrong. The Court, therefore, was competent under Section 518 to modify and correct the award and, in our opinion, it has not erred in doing so. We dismiss the appeal with costs including fees on the higher scale, one set of costs being allowed to the plaintiffs-respondents and another set to the defendants-respondents.


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