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Bava Mohideen Rowther Vs. Pathuma Gani Ammal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1947Mad410; (1947)1MLJ233
AppellantBava Mohideen Rowther
RespondentPathuma Gani Ammal and ors.
Cases ReferredGhulam Khan v. Muhammad Hassan
Excerpt:
- - having been unsuccessful in both his applications to this court, the appellant then filed o. 4. whatever grounds of argument the appellant may have on the question of limitation, we are satisfied that he could not in o.horwill, j.1. this appeal has been filed against an order of the district judge of east tanjore dismissing an application purporting to be made under sections 30 and 31 of the arbitration act.2. the dispute between the parties relates to the administration of a trust. in o.s. no. 18 of 1941 on the file of the district judge of east tanjore, a compromise was arrived at and a decree was passed in its terms. according to clause 13 of the compromise, there was a provision for reference to arbitration in the event of a dispute. a dispute did arise between the parties and a reference was made. an award was given and an application filed in the court of the district judge to pass a decree in terms of the award. the court did so. the appellant then filed a.s. no. 449 of 1942, in this court.....
Judgment:

Horwill, J.

1. This appeal has been filed against an order of the District Judge of East Tanjore dismissing an application purporting to be made under Sections 30 and 31 of the Arbitration Act.

2. The dispute between the parties relates to the administration of a trust. In O.S. No. 18 of 1941 on the file of the District Judge of East Tanjore, a compromise was arrived at and a decree was passed in its terms. According to Clause 13 of the compromise, there was a provision for reference to arbitration in the event of a dispute. A dispute did arise between the parties and a reference was made. An award was given and an application filed in the Court of the District Judge to pass a decree in terms of the award. The Court did so. The appellant then filed A.S. No. 449 of 1942, in this Court against the award and also C.R.P. No. 1702 of 1942. The regular appeal was dismissed on the ground that no appeal lay. The civil revision petition was dismissed on the ground that there was no error in the exercise of jurisdiction which warranted interference in revision. Having been unsuccessful in both his applications to this Court, the appellant then filed O.P. No. 72 of 1943 in the Court of the District Judge, the order on which is now under appeal. In that application he sought to re-agitate matters that had been raised in A.S. No. 449 of 1942 and C.R.P. No. 1702 of 1942. The Court held that they could not be gone into again and that the suit was too late, as it was filed long after the decree was passed.

3. It is argued here that time never began to run; for the time allowed for filing an application to set aside an award is 30 days from the serving of the notice, and no notice was ever given.

4. Whatever grounds of argument the appellant may have on the question of limitation, we are satisfied that he could not in O.P. No. 72 of 1943 re-agitate matters raised in A.S. No. 449 of 1942 and C.R.P. No. 1702 of 1942. Since A.S. No. 449 of 1942 was dismissed on the ground that no appeal lay, it was open to the appellant to raise the same questions in C.R.P. No. 1702 of 1942, and he did so and since this Court held that his objections on the ground of the exercise of jurisdiction were groundless, there was a final determination on that point which precluded him from filing O.P. No. 72 of 1943. It is argued on the authority of Ghulam Khan v. Muhammad Hassan (1901) 12 M.L.J. 77 : L.R. 29 LA. 51 : I.L.R. 29 Cal. 167 (P.C.) a decision of the Privy Council, that a revision petition to this Court was incompetent. We do not however find that Ghulam Khan v. Muhammad Hassan1, is an authority for that position. In that case, the question raised was whether, if the decision of the arbitrators on a point of law was wrong, the High Court could interfere in revision. Their Lordships pointed out that the matter was referred to the arbitrators and that their decision, right or wrong, was binding on the parties, that the Court was bound to pass a decree in terms of the award whatever its opinion might have been on the question of law, and that since that question could not be agitated by way of appeal, it would have been objectionable if the matter could have been raised in a revision petition. They held that a decree was rightly passed and binding on the parties. That decision has no application to the case here. If there were irregularities in the procedure of the District Judge, the appellant was certainly entitled to come to this Court, and if he could satisfy the Court that material irregularities in the exercise of the Court's jurisdiction had been committed which would justify this Court interfering in revision, to ask this Court to set aside the decree passed on the award. This Court considered the questions argued before it on the question of jurisdiction .and held against the appellant. That matter therefore became conclusive between the parties.

5. It is further argued that since the proper procedure was not adopted, the decree was a nullity and can be ignored by the appellant. We do not agree that he can. When despite objection a wrong procedure is followed, or a jurisdiction is wrongly assumed, the only remedy ordinarily available is to prefer an appeal against the decree or, if no appeal lies, to prefer a revision petition to this Court. If the aggrieved party does not adopt one of these courses or if he does so and fails, then the decree is final and binding on him, whether there was any wrongful exercise of jurisdiction or not.

6. The appeal fails and is dismissed with costs.


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