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Kanakku Nagalinga Naick Vs. S. Nagalinga Naick and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in4Ind.Cas.871a
AppellantKanakku Nagalinga Naick
RespondentS. Nagalinga Naick and ors.
Cases ReferredGhulam Khan v. Muhammad Hussain
Excerpt:
civil procedure code(act xiv of 1882), section 522 - award--decree in terms of award--appeal on the ground that the award was invalid or void ab initio, whether lies. - - in the judgment of the pull bench which is printed in extenso in the report, it was distinctly held that, although 'under the code of 1859 it was competent to a party to object by way of appeal that what purported to be an award was no award, or had no legal existence as an award ab initio,'under the code of 1882 such objections could not be taken......and we agree with that decision which is based upon the ruling of the judicial committee of the privy council in ghulam khan v. muhammad hussain 29 i.a. 151. it is suggested that the ruling of the privy council has been misunderstood and does not bar an appeal where it is alleged that there is no valid award or that the award is void ab initio. the appeal before the privy council was against the decision of the full bench of the chief court of the punjab. in the judgment of the pull bench which is printed in extenso in the report, it was distinctly held that, although 'under the code of 1859 it was competent to a party to object by way of appeal that what purported to be an award was no award, or had no legal existence as an award ab initio,' under the code of 1882 such objections.....
Judgment:

1. The plaintiff brought a suit for partition. At the request of the parties the matter was referred to arbitration. An award was submitted, and the Subordinate Judge, with slight modifications, passed a decree in terms of the award under Section 522, Civil Procedure Code. The 1st defendant appeals, and the grounds of appeal pressed are that the award is void ab initio because notice was not given to one of the arbitrators, and invalid because signed by only one of the arbitrators. The preliminary objection is taken that under Section 522, Civil Procedure Code, no appeal lies from the decree of the Subordinate Judge except in so far as the decree is in excess of, or not in accordance with the award, and that as no such ground is pressed the appeal must be dismissed. The case of the Chairman of the Purnea Municipality v. Siva Sankar Ram 33 C.v 899 supports this objection and we agree with that decision which is based upon the ruling of the Judicial Committee of the Privy Council in Ghulam Khan v. Muhammad Hussain 29 I.A. 151. It is suggested that the ruling of the Privy Council has been misunderstood and does not bar an appeal where it is alleged that there is no valid award or that the award is void ab initio. The appeal before the Privy Council was against the decision of the Full Bench of the Chief Court of the Punjab. In the judgment of the Pull Bench which is printed in extenso in the report, it was distinctly held that, although 'under the Code of 1859 it was competent to a party to object by way of appeal that what purported to be an award was no award, or had no legal existence as an award ab initio,' under the Code of 1882 such objections could not be taken. Referring to this judgment their Lordships of the Privy Council observed at page 185 that they entirely concur in the decision that no appeal lay. From this we think it is clear that the decision of the Privy Council has been correctly interpreted in Chairman of Purnea Municipality v. Siva Sankar Ram 33 C.J 899. In Indur Subbarami Reddi v. Kandadai Raja Mannar Aiyangar 26 M.K47 it was held that an appeal lay on the ground that the award was void not with standing that the decree was in accordance with what purported to be an award. The decision in Ghulam Khan v. Muhammad Hussain 29 I.A. 151 was not, however, referred to, and was probably not brought to their notice as it was passed only two months before the hearing. Holding, therefore, that no appeal lies in this case, we dismiss the appeal with costs.


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