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Arati Paul Vs. Registrar, High Court, Original Side - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberSuit No. 366 of 1963
Judge
Reported inAIR1965Cal3
ActsCode of Civil Procedure (CPC) , 1908 - Sections 2(9) and 96; ;Arbitration Act, 1940 - Section 2; ;Constitution of India - Article 226
AppellantArati Paul
RespondentRegistrar, High Court, Original Side
Appellant AdvocateM.N. Banerjee and ;P.K. Sen, Advs.
Respondent AdvocateD. Gupta, Adv. for the Registrar, ;D.N. Das, and ;N.C. Choudhury, Advs. for Respondents Nos. 3 and 4 and ;A.K. Matilal, Adv. for Gour Ch. Paul
DispositionApplication dismissed
Cases ReferredBengal Silk Mills Co. v. Aisha Ariff
Excerpt:
- orderp.c. mallick, j.1. the petitioner asks for a writ in the nature of mandamus on the registrar of this court directing him 'to recall, cancel and withdraw the filing of the pretended award dated april 1, 1963 as a judgment in suit no. 1045 of 1947 aspart of the record of this court. the petitioner is the plaintiff in the said suit and the respondents nos. 3, 4 and 5 are the defendants. the dispute between the brothers and sister relate to the estate left by their father srish chandra paul who died intestate in 1946 leaving considerable properties. apart from the plaintiff who is the youngest daughter and is still unmarried, sris had other daughters who are married and one of whom has died since. the widow of srish, pramila sundari dasi died on january 13, 1958 after having instituted.....
Judgment:
ORDER

P.C. Mallick, J.

1. The petitioner asks for a Writ in the nature of mandamus on the Registrar of this Court directing him 'to recall, cancel and withdraw the filing of the pretended award dated April 1, 1963 as a judgment in suit No. 1045 of 1947 aspart of the record of this Court. The petitioner is the plaintiff in the said suit and the respondents Nos. 3, 4 and 5 are the defendants. The dispute between the brothers and sister relate to the estate left by their father Srish Chandra Paul who died intestate in 1946 leaving considerable properties. Apart from the plaintiff who is the youngest daughter and is still unmarried, Sris had other daughters who are married and one of whom has died since. The widow of Srish, Pramila Sundari Dasi died on January 13, 1958 after having instituted the above suit and after executing a Will whereby she left her entire estate to the plaintiff her youngest daughter and the respondent No. 3 her youngest son, to the total exclusion of her two other sons and the other daughters. The suit instituted by Pramila Sundari was a suit for cancellation of a deed of gift executed by her in favour of her three sons in respect of one item of immoveable property situate in Calcutta of which she was the exclusive owner, and for partition of the estate left by her deceased husband. The agreement between Pramila Sundari and her three sons which purports to record the partition of the bulk of the estate left by Srish has also been chal-lenged in the said suit. During the pendency of the suit Pramila Sundari died leaving a Will as indicated before and by an order of this Court her youngest daughter Arati was transferred from the category of defendant to be the sole plaintiff in place and stead of the deceased mother. She also propounded her mother's Will which was contested by her two brothers Balai and Kanai. Thereupon the testamentary proceedings became a contested cause and was marked and numbered Testamentary Suit No. 12 of 1962. Both the Testamentary Suit and the other suit came up before me for trial. What happened thereafter will appear from the judgment delivered by me on April 1, 1963 hereunder set out.

'The suit and the testamentary proceedings initiated by the substituted plaintiff to prove the Will of Promila came up for trial, the testamentary proceeding having been placed first. The Testamentary proceedings was called on first and a number of witnesses were examined on behalf of the propounder. On January 4, 1963, the parties represented by their counsel asked me to dispose of the disputes in these two proceedings as I considered proper. No further evidence was tendered in the above two proceedings. What I was asked to do will appear from the minutes recorded and set out hereunder:

'It is recorded that all the parties consent to this testamentary suit as well as the partition suit being suit No. 1045 of 1957 and all the disputes involyed in these two matters be settled and referred to the sole arbitration of the Hon'ble Mr. Justice Mullick and the parties agreed to abide by any decision that will be given and no evidence need be taken except as to what His Lordship might desire and the evidence need not be recorded in any formal manner. Parties agree that His Lordship would have all the summary power including the power to divide and partition the properties and to make such decrees as his Lordship thinks fit and proper and for the purpose of partition, if necessary, to engage or appoint surveyors and commissioners as His Lordship thinks best.

It is recorded that all the parties have referred this matter to the Learned Judge in what is known as Extra Cursum Curiae jurisdiction of this Court.

It is further recorded that all parties agree that they will not prefer any appeal from or against the decree or order that may be passed by his Lordship the Hon'ble Mr. Justice Mullick.'

I have accepted it in terms of the prayer of the parties protracted litigation amongst suck near relations is extremely undesirable. It is not merely ruinous to the estate but also leaves in its trail such bitterness and bad blood between brothers and sisters that snaps all that is good and beautiful in their relationship. The method suggested by the parties, I hope, will leave behind the least evil and I will try to do justice to the parties and effect an equitable partition of the estate. The parties should remember that I cannot give decisions which would be to the tikiag of all the parties. Indeed it is more probable that none of the parties would be fully satisfied. Nevertheless the parties and their legal advisers have appreciated that however unsatisfactory it may appear to each individually, it is in their best interest to accept it without any mental reservation and give full stop to the family disputes.'

2. By my said judgment, both the suits were disposed of. I pronounced in favour of the Will, upheld the agreement recording the partition of the bulk of the estate and passed a partition decree declaring the shares of the respective parties in the different properties as under:

'In the result, for the present I will pass a preliminary decree as under:

I.

I declare that the deed of gift executed by the original plaintiff on September 27, 1946, in favour of the three defendants is a valid document and the premises Nos. 60/11 and 60/12, Gouribere Lane covered by the said document ceased to belong to the original plaintiff from the said date, the donees having acquired full ownership therein. Neither the original nor the substituted plaintiff has any interest in the said premises and it is directed to be kept out of the partition proceedings.

II.

I declare that there has been an amicable partition as recorded in the agreement dated March 30, 1952 being Annexure 'C' to the plaint. The properties set out in Schedules A, B and C of the said agreement have become ever since the exclusive properties oi the three defendants, respectively. The said properties set out in Schedules A, B and C are also directed to be kept out of the partition proceedings.

III.

I declare that the properties set out in Schedule 'D' of the said Annexure 'C' allotted in the said partition to the original plaintiff, became the pro-perties of the original plaintiff initially possessed under Hindu Women's right, subsequently in absolute title since the coming in force of the Hindu Succession Act, 1956. On her death, the substituted plaintiff and the defendants have acquired rights therein in the following shares:

Plaintiff...

1/2

DefendantNo. 1. Balai...

1/60th

DefendantNo. 2 Kanai...

1/6th

DefendantNo. 3 Gour...

1/6th

These properties would be partitioned according to the above shares declared in this proceedings.

IV.

I declare that the properties set out in Schedule 'E' to Annexure 'C' have not been partitioned and continued to be joint and have to be partitioned in this proceedings. I declare that at the date of her death the mother had 1/4th share in the said properties in absolute title. I declare that under the Will of the original, plaintiff, the substituted plaintiff has acquired a half share in the said properties belonging to the mother, the remaining half to be divisible amongst the three defendants equally. I declare the shares of the partners in the said properties as under:

Plaintiff...

1/8th

DefendantNo. 1 Balai...

7/24th

DefendantNo. 2 Kanai..

7/24th

DefendantNo. 3 Gour...

7/24th

V.

Any other immovable properties jointly belonging to the parties and not referred to in the said agreement dated March 30, 1952, still continue to be joint, and I make a declaration accordingly. These properties are liable to be divided and partitioned amongst the plaintiff and the defendants in the shares indicated below:

Plaintiff...

1/8th

defendant No. 1...

7/24th

Defendant No. 2...

7/24th

Defendant No. 3...

7/24th

VI.

I declare that the dwelling house at Dingel-hati, as also the Belgachia Garden, are the joint properties to be partitioned in this proceeding amongst the plaintiff and the defendants Nos. 1, 2 and 3 in the shares as indicated in paragraph V above.

VII.

There, will be following enquiries in the proceedings:

(i) As to what other immoveable propertieswere left out in the amicable partition andwhich continued to be joint even now.The enquiry will cover (i) lands in theZamindary not acquired (ii) lands leasedout to tenants at Calcutta and (iii) anyother immoveable property.

(ii) The enquiry will also be made as to what joint properties, in particular zamindary lands, were conveyed to the companies named in Schedule 'F' to the plaint.

(iii) There will also be a similar enquiry in respect of the moveables and the insurance money referred to in Schedule 'E' to the plaint.

The parties will have shares as indicated in paragraph V in respect of any immoveable property including money, that might be found to be jointly belonging to the parties.'

3. It is difficult to understand, far less to appreciate the grievance of the petitioner. She was given half the mother's estate on the basisof the mother's Will. Whatever she is entitled to in law has been given to her by the judgment. The amicable partition effected by the mother and the sons, I have not disturbed. The execution of the agreement is admitted but the amicable partition has been challenged on the technical ground that not being registered, the agreement does not effect a partition. I held on looking to the document that it does not purport to effect a partition but it only records that a partition has been effected in the past and the terms on which such partition was effected. I held that in law and in equity such a partition between the members of the family should not be disturbed. 1 very much regret that the petitioner, a young girl, should be so litigation-minded as to carry on litigation for its own sake and not for getting any benefit out of it. Not having sufficient experience, she is unable to appreciate how much injury she is doing to herself and her near relations. I leave it at that.

4. The instant application is an application under Article 226 of the Constitution for an order in the nature of mandamus on the Registrar of this Court. The object is to prevent the filing of the preliminary decree passed by me on April 1, 1963. The preliminary decree has been described as a 'pretended award' not even an award. The application was made before Binayak Baner-jee, J. on September 5, 1963, who refused to issue a rule and dismissed the application in limine with the following observation:

'In my opinion, the remedy chosen by the petitioner is not the correct remedy. If Mallick, J. was really acting as an arbitrator, he should have produced an award, but instead of doing so, passed a decree. . The decree may be a nullity. The petitioner may have the liberty of having the production of Mallick, J. declared as nullity. On the other hand, if the production of Mallick, J. is really a decree as ex-facie it is, then the Registrar has no other option but to proceed in accordance with the Rules of this Court and to permit the said decree to be filed and to pre-pare a decree in accordance therewith. In these circumstances, I cannot order the respondent to interpret the production of Mallick J. as an award even though ex facie it shows that it is a decree and to treat it as an award and then to proceed according to law.'

Against this order of dismissal an appeal was taken which was heard by a Bench consisting of Sinha and Arun Kumar Mukherjea, JJ. who by their order dated April 28, 1964 allowed the appeal and directed the issue of a rule. Their LORD-ships felt that having regard to the questions raised in the application, a rule should have been issued and the application should not have been dismissed in limine. Their Lordships expressly stated that they were not to be taken to express their views on the points raised which would have to be considered at the hearing of the rate.

5. This Rule has now come up before me for final hearing. Mr. M. N. Banerjee, learned counsel appearing in support of the rule contended that the most important question that requires to be considered in this application is the nature of the decisionembodied in the judgment delivered by me on April 1, 1964. In the petition the judgment is described to be a 'pretended award'. It is not a 'decree' which has been defined in the Civil Procedure Code as a formal expression of an adjudication, which so far as the Court express-ing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit which may be either preliminary or final. In the submission of Mr. Banerjee, if anything, the decision is an award and should be treated as such. If it is an award within the definition of the Indian Arbitration Act, it can only be filed in accordance with the provisions of the Indian Arbitration Act, 1940 and when filed notice under Section 14(2) will have to be served and the parties will have opportunity to set it aside. If it is not set aside after the statutory period or if the application to set aside the award is dismissed a judgment may be passed on the said award and then and not till then a decree is to be drawn in accordance therewith. This is the proper procedure in case the decision is held to be an award under the Indian Arbitration Act. But, as I stated before, the case of the petitioner is that it is not even aa award. Mr. Banerjee submitted that the instant judgment cannot be considered to be a judgment in accordance with which a decree can bo drawn up. There is no decision either in India or in England deciding the point and the case, therefore, is a case of first impression. It seems to me that because of the point being raised for the first time, that the Appeal Court held thai the application should not have been dismissed in limine and a rule should have been issued, so that the question raised for the first time and not covered by any authoritative decision may be properly considered. Though there is no direct decision on the point, a large number of decisions of the Courts in England and India has been cited which according to Mr. Banerjee throws light on the question in controversy. The oldest case cited by Mr. Banerjee is the case of James White v. Duke of Buccleuch, decided by the House of Lords and reported in LR (Scotch Appeal) Vol. I p. 70. The appellant in the cited case claimed 5 roads to be roads in which the public had a right of way and the defendant was asked to remove obstructions. It appears that the proceedings were taken out of the ordinary cursus curiae with the consent of all the parties. Subsequent orders known in Scottish Law as 'interlocutors' made in the said proceedings were the subject-matter of decision by the House of Lords. It was held that they are in the nature of award and are not subject to appeal. It is to be noted that the offending orders known as 'interlocutors' in Scot-tish Law were duly perfected and filed against which appeals were taken. It was not held that the 'interlocutors' could not be filed according to law. On the other hand, it was held that they being extra cursum curiae are not subject to appeal. As Lord Westbury observed, 'We cannot apply the ordinary rules of law to proceedings based on an order which is utterly at variance with the ordinary rules of law'.The next English case on which Mr. Banerjee strongly relies is the case of Wyndham v. Jackson reported in (1937) 3All ER 677. What happened in this case was that the plaintiff instituted a suit in the Chancery Division of the High Court on a contract for accounts. In the said suit an order of reference for accounts wag directed to be taken by the Master, At the request of both the parties the Master gave a decision on a matter which was not covered by the order of reference made by the Judge. This decision of the Master is recorded in a certificate which was sought to be discharged and varied by the parties against whom the decision was given before the Chancery Judge. The Chancery Judge made no order on the application holding that the certificate was a nullity on the ground that the matter was outside the order of reference and the Master had no jurisdiction to consider the matter and embody the same in a certificate. The application by the party in whose favour the decision was given for payment on the basis of the certificate was also dismissed by the Chancery Judge apparently on the ground that the certificate having been held to be a nullity was not enforceable. A suit was then instituted by the holder of the certificate in the Kings Bench Division of the High Court for payment of the amount awarded by the Master on the basis that the parties have agreed to pay the amount to be awarded by the Master and a certificate is binding on the parties. Goddard J., who heard the suit held that the Master's certificate not having been covered by the order of reference in the suit in the Court of Chancery but having been made at the request of the parties was in the nature of an award and as such was binding on the parties. On this basis a decree was passed. It was for the first time that an order passed by Court extra cursum curiae by consent of the parties was sought to be enforced in a separate proceeding by a suit. The reasoning and the approach of Goddard L. J. on the question will appear from the passage at page 681 hereunder set out:

'Now, for the plaintiff, it is argued that a series of cases decides that, when the Court, either of its own motion, assented to by the parties, or on the request of the parties, acts extra cursum curiae, departs, that is, from the ordinary course of procedure, to use the expression of Lord Halsbury, L.C., in Burgess v. Morton, 1896 AC 136 the resulting determination or order cannot be regarded as a judgment or order in an action, because the Court is acting outside its proper sphere or powers, but, nevertheless, the judge may be regarded as acting as an arbitrator, and his decision is equivalent to an award, in that he has determined, though not in the regular course of an action, the questions on which the parties have requested him to adjudicate. Among the cases relied on by the plaintiff are Craig v. Duffus, (1849) 6 Bell SC App 308, Dudgeon v. Thomson, (1854) 1 Macq 714, Refrew (Provost) v. Hoby, (1856) 4 WR 632, Harrison v. Wright, (1845) 13 M. and W. 816, and 1896 AC 136. I think that, in stating the plaintiff's submission as I have done, I have fairly summarised the result of those deci-sions. True it is that they all deal with the question of whether an appeal lay from the decision in question, but it seems to me that the ground of the decision is not that the parties impliedly agreed not to appeal, as in the case of Re Durham County Permanent Benefit Building Society, Ex. p. Wilson, where the case was left to the summary decision of the judge, but that the parties, by asking the judge to decide something in a manner outside the ordinary course of law, mustbe taken to have agreed to be bound by his decision, not as a judge who can act only within the ordinary course of law, but as an arbitrator. The convenience and practical justice established by this line of authority are obvious. The judge has done what the parties asked him to do: an enquiry, a trial, in everything except for technical requirements, has been held, and the decision of a trained and impartial mind obtained. It is surely right that this result should not, if it can be avoided, be regarded as a complete nullity, and the parties put to the expense of a further hearing, again going over exactly the same ground.'

And again at p. 682:

'Mr. Busse, however, founding his argument on Pisani v. A. G. for Gibraltar, and some passages in Bickett v. Morros, contends that a mere departure from the ordinary rules of practice, with the consent of the parties, who have no intention of departing from the cursus curiae, does not turn the proceedings into an arbitration, and this, he contends, is what happened in this case. If I felt at liberty to form my own opinion on this matter, I should hold that there was here nothing more than a departure from practice, and that the case was on the same footing as Pisani v. A.G. for Gibraltar. But the difficulty I feel about so holding is this: Farwell, J., must, as it seems to me, have held the contrary, and held it in a matter to which both the plaintiff and the defendant were parties. Very respectfully, and perhaps because I am unfamiliar with Chancery proceedings I differ from Farwell, J. I should have thought that, where parties both of whom are sui juris, ask the master (who, be it observed, is sitting under an order in fact made by himself) to hold an enquiry which an order could direct him to hold, the proceedings ought not to be regarded as a nullity, or otherwise than as a step in the action, and that any technical requirements could be satisfied by enlarging the ambit of the order nunc pro tunc. It is only fair to say that the objection that the order was anullity did not come from either party. But the Judge did so hold; he himself took the objection and refused to consider a summons asking for variation, and ordered the defendant to pay the costs. Then, when the other side sought to enforce it, Luxmoore, J., as I was told, without expressing an opinion himself, but following Farwell, J., refused an order on the same ground. Neither party appealed against either order, and they are now conclusive against them. Whether the Judge would have decided the same way if Pisani's case had been in his mind. I respectfully doubt; but I have neither the right nor the wish to act as a Court of Appeal, and jt seems to me that, were I to hold that the certificate was given in cursum curiae, I should be in effect reversing both the orders made when that certificate was before the judges in the Chancery Division. I must take it that it has been finally decided, in a matterbetween the parties, that the certificate was given extra cursum curiae. Then, as I find it was the result of a hearing which both parties requested and to which they assented, I think it falls within the line of cases on which the plaintiff relies, and can be enforced as an award.

I confess that I am glad to be able to com-to this conclusion, and not to feel obliged to hold that a two days' hearing before the master, at which the plaintiff and defendant and their witnesses were examined and cross-examined, and argument heard, and a careful decision given, is to be disregarded for all purposes.'

I have cited the judgment of Goddard, J., in extenso because Mr. Banerjee puts strongest reliance on this judgment of Goddard, J. It is to be noted that the argument of the learned counsel appearing for the plaintiff was that the decision of the Master extra cursum curiae was 'in the nature of an award' and cannot be considered to be a nullity. This argument was accepted by Goddard J., and the ratio of his decision is that both the parties being sui juris and having expressly asked the Master to decide the question the certificate given was extra cursom curiae, should not be disregarded and must be given effect to. On this basis Goddard, J., held that the certificate cannot be held to be a nullity. Previously the learned Judge indicated that what was done by the learned Master was nothing more than a departure from the normal practice and the proceedings ought not to be regarded as a nullity or otherwise than as a step in the action, and that any technical requirements could be satisfied by enlarging the order of reference, Goddard, J., seems to think that this is what the learned Chancery Judge should have done when the appli-cation for enforcing the certificate was made before him. This judgment of Goddard, J., is an authority for the proposition that a decision given by a Court at the request of the parties of a dispute that is not covered by the lis pending before the Court is not a nullity but a decision binding on the parties. It is a decision by a Court extra cursum curiae and would be as much binding on the parties as an .award is binding on them. The learned Judge did not lay down any proposition that such a decision is nothing but an award and can only be enforced in the same way as an award can be enforced. On the other hand, the learned Judge did not question the propriety of filing the certificate. The argument advanced by the learned counsel which was accepted by the learned Judge was that the decision embodied in the certificate though not an award, should for the purpose of enforceability be treated as if it was an award. Nothing beyond was laid down by Goddard, J. The judgment of Goddard, J. was set aside by the Court of Appeal by a judgment delivered by it reported in Wyndham v. Jackson, (1938) 2 All ER 109. The Appeal Court took the view that the intention of the parties was that the Master should deal with the dispute according to the ordinary process of the Court, under which his determination would not be final, but subject to the further order by the Judge. The parties could not therefore have intended that the decision of the Master would be final and bindingunless it is confirmed by the Court. The certificate not having been confirmed by the Court, it could not be held to be binding on the parties and the decision of the Master is not of such binding force on which an action can be founded. The Appeal Court took the view that the proceeding was not extra cursum euriae and as such it did not feel necessary to consider the question any further. It seems that the only question debated before the Trial Court and the Appeal Court was whether Farwell J., the Chancery Judge was right in holding that the certificate of the Master was a nullity on the ground that the dispute was outside the order of reference. Goddard, J., held it not to be a nullity on the ground that it was a decision extra cursum euriae given by the Master at the express requests of the parties and as such is binding on them, Appeal Court held that the parties referred this matter to the Master and asked him to give a certificate in the regular course i.e., cursum euriae with the full knowledge that unless confirmed by the Judge such a certificate is not binding. The certificate by itself therefore was never intended to be binding on the parties. On this ground the decision of Goddard, J, was set aside. The decisions of the trial Court as well as of the Appeal Court can hardly be authorities on the basis of which I can make the order asked for by Mr. Banerjee.

6. A decision referred to by Goddard, J. in his judgment is the decision of the House of Lords in the case reported in 1896 AC 136. In this case the Court was asked to give its decision on a 'special case' raising a dispute of fact only. At the request of the Counsel of both the parties the Court was persuaded to give a decision even though in law the Court had no jurisdiction to try a 'special case' raising a question of fact only. An appeal was taken and the Court of Appeal reversed the decision on the ground that the Court had no power to give a decision on a 'special case' raising a question of fact only. The matter was then taken to the House of Lords. The judgment of the Court of Appeal was reversed and set aside by the House of Lords on the ground that 'the proceeding was extra cursum curiae and that the decision of the dispute between the parties was of the nature of an award by arbitrator's (per Lord Shand at p. 145). In the third edition of Halsbury, Laws of England Vol. 2 paragraph 15, page 8 we find the following observations,

'An agreement that the decision of a Judge sitting in Court should be unappealable is however, despite the language of some of the decisions cited, not an arbitration agreement; the decision when given is a judgment, not an award, and the Judge is not placed in the same position as an arbitrator'.

A large number of decisions of the Indian Courts wag cited by Mr. Banerjee. I do not think it necessary to discuss them. In none of these decisions such a decision of the Judge extra cursum curiae has been held to be an award. Nor has it been held that such a decision cannot be filed and drawn up as a decree or order of the Court. In each of these cases the decree or order was duly filed and perfected and the propriety of such an act of filing has never been questioned. It has been held to be binding on the parties and notappealable 'as if it was an award'. In some cases the language used is 'deemed to be an award', in some 'virtually ah award', in others 'as if it was an award'. Nor has it been laid down in any of those cases that being an award, for the purpose of enforcing it, it must be filed as an award and not as a judgment or decree of the Court.

7. What happened in the instant case was that the parties asked the Judge during trial to adjudicate the disputes between the parties in a summary way regardless of the ordinary procedure of the Court which decision the parties agreed to abide by. The minute of January 4, 1963 goes on:

'It is recorded that all the parties have referred this matter to the learned Judge in what is known as the Extra Cursum Curiae Jurisdiction of this Court. It is further recorded that all the parties agree that they will not prefer any appeal-from or against the decree or order that may be passed by his Lordship the Hon'ble Mr. Justice Mallick''.

It is true that earlier in the same minute words used were 'all the disputes involved in these two matters be settled and referred to the sole arbi-tration of Hon'ble Mr. Justice P. C. Mallick and the parties agree to abide by any decision that will be given'. The question to be decided is what is the nature of the decision the Judge was expected to pass? Was it an award the Judge was expected to make or was the Judge expected to pass a decree or order in the pending proceedings?

8. When the parties expressly ask a Judge to pass a decree in the pending proceeding and the Judge is expressly asked to abridge the procedure and to act 'extra cursum curiae', there cannot be in my judgment any room for controversy that the Judge is required by the parties to act as a Judge and not as an Arbitrator. It is to be noted that every in the first paragraph of the minutes in which the parties recorded their consent to the disputes being left to be adjusted to the sole arbitration of myself, they empower the Judge 'to divide and partition the properties and to make such decree as His Lordship thinks fit and proper'. Finally it is recorded that the parties will not prefer any appeal from or against the decree or order that may be passed. Nowhere in the minutes the decision to be given by me has been described to be 'an award'. When a Judge is asked by the parties to make a final pronouncement of his decision on a litigation pending before him as a Judge and the pronouncement to be made is des- cribed not to be an award but a 'decree or order', the parties could not have intended the Judge to give his decision on the dispute except as a judgment. The intention of the parties is clear that the Judge was expected to give his decision as a Judge and pass a decree or order as a Court or Judge is required to pass in a pending suit. The fact that the Court or Judge is required to abridge the procedure and act extra cursum curiae does not indicate that he is not required any longer to act as a Judge but as an arbitrator. The Court or a Judge is normally required to act and acts according to the procedure of the Court. If he is required bythe parties that the procedure need not be strictly followed the Court or Judge is expected to act 'extra cursum curiae'. In the case of Bengal Silk Mills Co. v. Aisha Ariff decided by the Appeal Court and reported in : AIR1947Cal106 Gentle, J. made the following observations at p. 109: --

'It is well settled that the parties to a suit which is properly before the Court, can agree that the Judge should decide all matters in issue in the way he considers proper and after, for instance, an inspection of the locus in quo, and without calling evidence. When this course is adopted a Judge acts 'extra cursum curiae' and his decision is final and conclusive between the parties.'

The words 'extra cursum curiae' are used in reference to the proceedings before the Court or a Judge. It is never used in respect to arbitration proceedings. I find neither any reason nor any authority in support of the proposition that when a Court or Judge is asked to act extra cursum curiae and he does so act at the request of the parties, he is no longer a Judge but an arbitrator and his decision is not a decree or order of the Court butan award of an arbitrator. It is true that the decree or order passed by the Judge extra cursum curiae resembles the award passed in an arbitration proceeding in that such a decree or order is not liable to appeal even though such a decree or order is appealable in the ordinary course. Hencethe language used in the decision is that such adecision is 'in the nature of an award or' as if it isan award' or such like phrases. There is not asingle decision to the effect that it is an award andcan only be enforced in the same way as an award made by the arbitrator can be enforced. Only in the case of (1938) 3 All E. R. 677, Goddard, J. attempted to enforce a decision of the Master extra cursum curiae, not in the proceeding itself, but in a different proceeding, by a suit. The decision of Goddard, J., has however, been set aside in appeal. Hardly any reliance can be placed on a decision set aside inappeal, apart from the fact that the case before Goddard, J., was most unusual. We are not to ignore the fact that Goddard, J. did his utmost to uphold the order the Court was expressly asked to pass by the parties extra cursum curiae, whereas in the instant case Mr. Banerjee's client wants to get out of the decree and order the Court was persuaded to pass at the request of the parties, including the applicant. The two cases can hardly be treated in the same footing.

9. The minute recording the agreement setout above cannot be treated as an order of reference under Section 21 of the Arbitration Act. Section 21 of the Arbitration Act requiresthat there must be an application in writing on which the Court can make an order ofreference. In the instant case, there was no petition in writing and the minutes of January 4, 1963 cannot be treated as an order of reference. Incidentally it may be noted that what happenedon January 4, 1963 was never intended to bedrawn up and the parties were in error in askingthe Registrar to draw up the same as an order. The preliminary decree directed to be drawn up by my judgment dated April 1, 1963 should record theminutes by which the parties expressly asked the to act extra cursum curiae. It is to be noted that it is not the petitioner's case that it is an award made in a competent application under Section 21 of the Arbitration Act. Indeed, one of the grounds taken by the petitioner is that it cannot be an order of reference in the absence of any application in writing in that behalf. The proceeding does not come under any of the other two categories of arbitration proceeding, namely, an arbitration without the intervention of the Court under Chapter II or an arbitration under the supervision of the Court under Chapter III, It was, therefore, totally outside the Arbitration Act. The reason why nobody until now has questioned the nature of a decision given by a Judge extra cursum curiae is that it is unquestionably a decision of the Court to be enforced in the same way as a decree or order of the Court. The decree or order of the Court resembles an award, in that it is not appealable even though the decree or order would have been otherwise liable to be challenged in Appeal. Otherwise, there is no distinction between an order passed by the Judge in regular course and an order passed extra cursum curiae.

10. I have considered the question raised, because I am expressly asked to record my view on the question raised by Mr. Banerjee and because it seems to me that the Appeal Court was apt to think that the question raised by Mr. Banerjee requires consideration. In my view, however, having regard to the nature of the writ asked for the question does not strictly arise. The writ asked for, in my judgment cannot be. issued under Article 226 of the Constitution. The object of this application and the order asked for is to compel the Registrar not to file a decree passed by a Judge in a pending suit. It is crystal clear from the offending order that I passed a 'preliminary decree' in the suit in express terms. I was asked by the parties to pass a preliminary decree and I passed a decree. There is no room for doubt on that point. Whether I was right or whether I was wrong is beside the point. In any event, it is not the business of the Registrar for any other officer of the Court to sit in judgment on a decree or order passed by the Court. Yet, this is exactly what the petitioner wants. She wants the Registrar to refuse to file the decree, on the ground that I was wrong in passing a decree. Rules of this Court make it obligatory on the Registrar to file a decree passed by the Judge. It is not for him to decide whether the Judge was entitled to pass the decree or whether it is according to law. Whoever else is competent to question it, the Registrar was not. The Registrar is bound in law to file it. If any doubt arises as to how the decree is to be drawn up, the parties are entitled to come before the Judge who passed the decree or order and make their submissions to the Judge concerned and to no other Court. To recognise the right of a (party to challenge an order or decree passed by a Judge of the High Court in a judicial proceeding pending before him by an aplication under Article 226 of the Constitution, is unheard of and unprecedented. It is equally unheard of and unprecedented to call upon the Registrar of this Court not to file a dercee or order passed by a Judge, by an application under Article 226. It is the duty of the Registrar to file an order passed by a Judge of this Court and no order can be passed calling upon the Registrar to violate the law and to act contrary to the Rules of this Court. To recognise the right claimed by the petitioner is to introduce complete anarchy in theadministration of the justice by this Court. If the decree or order is wrong, the aggrieved party maytake the matter to the Court of Appeal for correcting the order. If the decree or order is not liable to appeal, by reason of the agreement between the parties not to appeal, no legitimate grievancecan be made by any party, nor will the Court entertain any such grievance in that behalf. Ifthe decree or order is a nullity, the parties arefree to take such step as they may be advised.They may sit tight on it treating the decree asa nullity as a mere scrap of paper--or they mayhave it declared to be a nullity in an appropriateproceeding. Whatever other right the partiesmay or may not have, as indicated above, theyhave no right to ask the 'Registrar not to file thedecree or order, which the Registrar is bound tofile in law. No party is entitled to ask theCourt to issue a writ in the nature of mandamusto compel the Registrar to act not according tolaw but contrary to the provisions of law. I can-not conceive of a greater abuse of the processes oflaw than the instant application.

11. Mr. Banerjee lamented that unless theorder asked for is made, his client has no other remedy. She is debarred from preferring anappeal. She is debarred from challenging it as an award, because it is not an award and it cannot be filed as an award under the Indian Arbitration Act. It may be that she is debarred from further litigating. But she is so debarred from further litigating, because of her expressly agreeing to accept my decision to be final and bindingon her. In my judgment, she was well advised to have acted as she did to put a full stop to litigation and not to ruin herself and her brothers by a protracted litigation and to keep alive the ill-feeling between them, I greatly deplore hersubsequent conduct. As indicated before, she got half the estate of her mother by the decree passed by me. She is not entitled to anything more in law. The Solicitor and Counsel who gave her correct advice have been chucked out and now she is running from one Court to another, one wonders for what? In his judgment in the case of (1938) 2 All E. R. 109, Grear, L. J. commented on the conduct of the parties in carrying on rumous litigation, which was characterised by His Lordship as melancholy. The instant case before me makes me more melancholy, because it is not merely ruinous but it also keeps alive indefinitely bad feeling between brothers and sisters. I was amazed to be told that the sister is persisting in this litigation, because she considers that by so doing she is paying respect to the memory of her mother. The two brothers are alleged to have behaved badly with the mother in the last few years of her life. In the will executed by her, of which I granted probate, the only specific grievance made by the mother against her two sons is that they did not marry the youngest sis-ter, the petitioner. To what extent the responsibility for it falls on the eider brothers or the petitioner I have great doubt. But even if the two sons did not behave properly with their mother, which if true, must be condemned in no uncertain terms, would it be doing respect to the mother by carrying on interminable litigation, which cannot but ruin the children of the same mother? I do not understand this attitude of the petitioner, far less to appreciate it. I ask the petitioner to soberly consider the matter and to give up this attitude of mind which is as much ethically wrong as it is against her interest.

12. For reasons stated above, the Rule is discharged and the application dismissed with costs; Certified for two Counsel. I direct the Registrar to file the decree forthwith. Subsequent proceedings should proceed now without any further delay.

13. An application is made under Article 132(1) of the Constitution for leave to appeal to the Supreme Court. I refuse to grant such leave. Oral application for stay is also refused.


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