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Mumtaz Ali Vs. Allah Banda - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in92Ind.Cas.600
AppellantMumtaz Ali
RespondentAllah Banda
Cases ReferredJagat Pande v. Sarwan Pande
Excerpt:
civil procedure code, (act v of 1908), section 104(f), order xxiii, rule 3. order xliii, rule 1(m), schedule ii, paras. 20, 21 - arbitration--award--decree on award--appeal--remand--appeal, second, whether lies. - .....the arbitrators should be filed in court. objections were filed on the 26th of april denying any valid reference to the arbitrators or the making of any valid award. the court of first instance took evidence and decided that a valid reference and a valid award had been made. but instead of passing first an order directing the award to be filed and then passing a decree in terms of it it passed a composite order decreeing the plaintiff's claim in terms of it. an appeal was preferred by the defendant to the lower appellate court purporting to be an appeal from the decree so passed by, the learned munsif. there is no reference in the judgment of the lower appellate court that the respondent's vakil took the objection that no appeal lay to it. the lower appellate court came to the.....
Judgment:

1. This purports to be a first appeal from order of remand. In the course of a pending suit, while a Commissioner was appointed by the Court to draw up a sketch plan, the parties are alleged to have agreed to refer their dispute to two arbitrators who went to the spot and made two marks on the land to indicate the line which should be drawn beyond which the defendant's construction should not extend. On the 22nd of April 1924 an application purporting to be one under Schedule II, Rule 20 of the C.P.C., was filed by the plaintiff with a request that the alleged award made by the arbitrators should be filed in Court. Objections were filed on the 26th of April denying any valid reference to the arbitrators or the making of any valid award. The Court of first instance took evidence and decided that a valid reference and a valid award had been made. But instead of passing first an order directing the award to be filed and then passing a decree in terms of it it passed a composite order decreeing the plaintiff's claim in terms of it. An appeal was preferred by the defendant to the lower Appellate Court purporting to be an appeal from the decree so passed by, the learned Munsif. There is no reference in the judgment of the lower Appellate Court that the respondent's Vakil took the objection that no appeal lay to it. The lower Appellate Court came to the conclusion that the arbitrators had not made any award. It accordingly remanded the case to the Court below for trial according to law.

2. There can be no doubt that no appeal lies from a decree which is passed in terms of an award except in so far as it is at variance with the award. In this case there was a composite order passed by the Munsif and it is impossible to hold that the defendant was not entitled to any relief. Even if the order of the first Court were taken to be an order recording a compromise an appeal would be from that order, la our opinion this case is on all fours with the ruling in Jagat Pande v. Sarwan Pande : AIR1925All404 . The appeal to the Court below must be', treated as an appeal from an order, with the result that no second appeal lies to this Court.

3. As there has been some confusion owing to the way in which the appeal was described in the lower Appellate Court, we direct that the parties bear their own costs of this appeal.


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