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Gladstone Wyllie and Co. Vs. Joosub Peer Mahomed and Co. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported inAIR1924Cal117,77Ind.Cas.868
AppellantGladstone Wyllie and Co.
RespondentJoosub Peer Mahomed and Co.
Cases ReferredLouis Dreyfus & Co. v. Purusottom Das Naraindas
Excerpt:
arbitration act (ix of 1899), section 15 - civil procedure code (act v of 1908), order xxi, rule 16--assignment of award--execution--procedure. - .....of bombay refused to grant a stay under order 21, rule 29, in respect of the execution of an award filed in court, on the ground that the applicant was not the holder of a decree of court and was therefore not entitled to a stay under the provisions of order 21, rule 29. reliance was further placed on a passage in baijnath v. ahmed mussaji (1912) 40 cal. 219, where sir lawrence jenkins states that when an award is filed, the result is not that there is a suit in which a decree has been passed, but that there is an award which shall be enforceable as though it were a decree. and lastly, reliance was placed on the case of e.d. sassoon v. ramdutt ramkissendas a.i.r. 1922 p.c. 374, where the present lord chancellor, in delivering the opinion of the judicial committee, stated that.....
Judgment:

Greaves, J.

1. This is an application by the assignees of an award for the execution of the award. The award was made in favour of Messrs. Gladstone Wyllie & Co. It was duly filed and was therefore capable of execution as a decree under the provisions of Section 15 of the Indian Arbitration Act. In execution thereof Messrs. Gladstone Wyllie & Co. attached certain properties of Messrs. Joosub Peer Mahomed & Co.

2. The attachment was ultimately withdrawn upon certain terms which are set out in the copy of a letter addressed by Messrs. Gladstone Wyllie & Co. to Messrs. Joosub Peer Mahomed. By these terms the amount of the award was payable in certain sums therein mentioned and, in default of any instalment not being paid, Messrs. Gladstone Wyllie & Co. reserved to themselves the right to proceed with the execution proceedings for the balance of the full amount due under the award. Certain payments were made in pursuance of this arrangement and ultimately, I think sometime in January or February of this year, the award was assigned by Messrs. Gladstone Wyllie & Co. to the present applicants who now seek to enforce it for the balance of the whole amount of the award.

3. Three points are raised on behalf of Messrs. Joosub Peer Mahomed & Co. First, it is said that the assignment is not proved. Secondly, it is said that the arrangement is not correctly set forth, and thirdly, certain points arising on the Civil Procedure Code are relied on as reasons why the order sought should not be made.

4. So far as the first point is concerned it seems to me that upon the evidence before me the assignment is amply proved and, so far as the second point is concerned, I am satisfied that the arrangement put forward by the present applicants is in fact the arrangement that was arrived at between Messrs. Gladstone Wyllie & Co. and Messrs. Joosub Peer Mahomed as terms upon which the attachment should be withdrawn. The third point remains. What is said is this that the provisions of Order 21, Rule 16, are not applicable in a matter of this nature inasmuch as this is not the Court which can be said to have passed the decree, and reliance is placed upon the case of Tribhuwandas Kaliandas Gajar v. Jibanchand (1910) 35 Bom 196, where the learned Chief Justice of Bombay refused to grant a stay under Order 21, Rule 29, in respect of the execution of an award filed in Court, on the ground that the applicant was not the holder of a decree of Court and was therefore not entitled to a stay under the provisions of Order 21, Rule 29. Reliance was further placed on a passage in Baijnath v. Ahmed Mussaji (1912) 40 Cal. 219, where Sir Lawrence Jenkins states that when an award is filed, the result is not that there is a suit in which a decree has been passed, but that there is an award which shall be enforceable as though it were a decree. And lastly, reliance was placed on the case of E.D. Sassoon v. Ramdutt Ramkissendas A.I.R. 1922 P.C. 374, where the present Lord Chancellor, in delivering the opinion of the Judicial Committee, stated that Section 15 of the Arbitration Act does not enact that the award when filed is to be deemed to be a decree of the Court but only that it is to be enforceable as if it were a decree.

5. As against this, I was referred to the provisions of Order 21, Rule 50, Sub-section 2 of the Civil Procedure Code and to a decision in Louis Dreyfus & Co. v. Purusottom Das Naraindas (1919) 47 Cal. 29, where the learned Judge refused to accede to the argument that he could not go into the matters to which Order 21, Rule 50, Sub-clause 2 relates, on the ground that the award when filed was not a decree for the purpose of that sub-section, and I was further referred to a decision in Chambers by myself in which I apparently arrived at the same conclusion.

6. On behalf of Messrs. Joosub Peer Mahomed & Co., it is said that although the decision under Order 21, Rule 50, Sub-Clause 2, may be correct, it does not cover a case arising under Order 21, Rule 16, which does not relate to actual proceedings for enforcement of a decree as do the provisions of Order 21, Rule 50, Sub-clause 2. I am afraid I cannot assent to this argument. I think that when under the provisions of Indian 1 Arbitration Act, Section 15 the legislature provided that an award on being filed was enforceable as if it were a decree of the Court, it intended that all the provisions of the Code of Civil Procedure applicable to the execution of decrees should apply to an award so filed, and if it is necessary to say which is the Court which passed the decree within the meaning of Order 21, Rule 16, I think that for purposes of execution after the award is filed and is capable of execution as a decree this Court must be deemed to be the Court which passed the decree for the purposes of these sections in the Civil Procedure Code.

7. The result is that the objections raised on behalf of Joosub Peer Mahomed & Co., in my opinion fail and I must make the order that is sought. Let a warrant issue. The applicant is entitled to the costs of this application. I stay execution for a week. If Joosub Peer Mahomed & Co., pay in the amount of the award by them, there will be liberty to the-applicants to withdraw the same giving, security.


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