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Nistarini Chowdrani and ors. Vs. Hurronath Chowdhry - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1884)ILR10Cal74
AppellantNistarini Chowdrani and ors.
RespondentHurronath Chowdhry
Cases Referred and Boonad Mathoor v. Nathoo Shahoo I.L.R.
Excerpt:
appeal - arbitration--application to file award, objections to--civil procedure code (act xiv of 1882), sections 525, 520 and 521. - .....instance to have pursued was to have dismissed the application, and left the plaintiff to bring a regular suit to enforce the award.9. it was further contended that no appeal could in that case have been preferred from the order of the munsif rejecting the application, and that the lower appellate court has acted without jurisdiction in entertaining an appeal at all.10. our attention has been called to a good many authorities, and specially to sashti charan chattergee v. tarak chunder chatterjee 8 b.l.r. 315 : 15 w.r. f.b. 9; rajchunder roy chowdhry v. brojendro goomar roy chowdhry 21 w.r. 182; mudhusudan das v. adaita charan das 8 b.l.r. 316 note : 12 w.r. 85; and boonad mathoor v. nathoo shahoo i.l.r. 3 cal. 375.11. the result of these decisions is not very clear, but we are disposed.....
Judgment:

Richard Garth, C.J.

1. This appeal comes before us under rather peculiar circumstances.

2. A dispute arose between the parties to the suit with regard to the boundary of their respective properties. The dispute was referred privately (without the intervention of a suit) to three arbitrators.

3. These arbitrators, having taken evidence and made a local investigation, made an award in favour of the plaintiffs on the 7th of Srabun 1286 (22nd July 1879).

4. The plaintiffs then petitioned under Section 525 of the Civil Procedure Code that the award should be filed in Court.

5. To this petition objections were made on the part of the defendant, stating various reasons why the award should not be filed, and, amongst others, that the arbitrators had been guilty of partiality and other misconduct, which would be grounds for impugning the award under Sections 520 and 521 of the Code.

6. Upon these objections being made, the first Court (apparently with the full consent of both parties) fixed an issue for trial in this general form: 'Whether the award could be filed and enforced?' Under this issue all the questions raised between the parties with regard to the validity of the award appear to have been fully discussed, and tried. Evidence was called by both sides, and in the result a decree was made, that the suit should be dismissed, and the application disallowed, the Munsif being of opinion that the arbitrators had proceeded to decide the matters in dispute in a manner not warranted by their authority, and that all the arbitrators were not present at the time when the ameen made a measurement of the land. This decision was appealed to the Subordinate Judge, and it appears that he also has again heard the whole case, and has come to the conclusion (for reasons which in point of law appear to be unobjectionable) that the award is good, and that it ought to be enforced.

7. He, therefore, reversed the decree of the first Court, and ordered the award to be enforced; and he gave the plaintiffs their costs in both Courts with interest at 6 per cent.

8. The case now comes up to this Court on second appeal; and it has been contended by the appellant that, as the arbitration was a private one, and as the objections to the award, or some of them, were such as are mentioned in Section 520 or 521, the Courts below had no right in a proceeding of this kind to try the question as to the validity of the award, and that the proper course for the Court of First Instance to have pursued was to have dismissed the application, and left the plaintiff to bring a regular suit to enforce the award.

9. It was further contended that no appeal could in that case have been preferred from the order of the Munsif rejecting the application, and that the lower Appellate Court has acted without jurisdiction in entertaining an appeal at all.

10. Our attention has been called to a good many authorities, and specially to Sashti Charan Chattergee v. Tarak Chunder Chatterjee 8 B.L.R. 315 : 15 W.R. F.B. 9; Rajchunder Roy Chowdhry v. Brojendro Goomar Roy Chowdhry 21 W.R. 182; Mudhusudan Das v. Adaita Charan Das 8 B.L.R. 316 note : 12 W.R. 85; and Boonad Mathoor v. Nathoo Shahoo I.L.R. 3 Cal. 375.

11. The result of these decisions is not very clear, but we are disposed to think that when an application is made to the Court to file an award under Section 525, and an objection is made to the filing of it upon any of the grounds mentioned in Section 520 or 521, the proper course for the Court to pursue is to dismiss the application, and to leave the applicant to bring a regular suit to enforce the award, in which all the objections to its validity may be properly tried and decided.

12. We also think, that where no such ground of objection is made to the ' filing of the award, and the Court consequently orders it to be filed, no appeal lies against that order.

13. If either of the parties in this case had taken exception in proper time to the course which was pursued by the Munsif, and had applied to this Court under Section 622, it is probable that we should have stayed the proceedings.

14. But what has really taken place is this: Instead of dismissing the application, as he ought to have done, the Munsif has proceeded to try the questions at issue between the parties, precisely as if this had been a regular suit brought to enforce the award.

15. Both parties, so far as we can see, have consented to that course, and have brought forward all the arguments and evidence on both sides which they could have brought forward in a regular suit.

16. Moreover, the decision of the Munsif has been appealed to the Sub-Judge without any objection on the part of the respondents, and the case has been again heard on appeal before him, with the result that the Munsif's judgment, has been reversed, and the award has been ordered to be enforced.

17. We are now asked on second appeal to say, that both the lower Courts, have acted without jurisdiction, and to reverse the lower Appellate Court's judgment on that ground.

18. Now it appears to us in the first place, that if both Courts have acted without jurisdiction, and if this proceeding is not a suit at all, we have no more right to try the case on second appeal than the lower Courts had to try it. We ought, therefore, in that case to dismiss the appeal for want of jurisdiction to hear it.

19. But then it is argued that, if we cannot deal with it on second appeal, we ought at any rate to allow the appellant to apply to set the proceedings aside: under Section 622 of the Civil Procedure Code. The answer to that is, that we have; at present no application before us under Section 622; and if we had, I for one should certainly not be disposed to help the appellant, inasmuch as both parties have consented to try the cause as it has been tried; and I see no reason to believe' that any injustice has been done.

20. But the proper view to take of the matter we consider to be this; it is clear that both parties have treated these proceeding, from-first to last, as a regular suit to enforce the award. Both the Judges who have tried the case, and the parties themselves, have all dealt with it upon that footing; and the appellant is wholly unable to suggest that, if these proceedings were set aside and the cause were tried again, it would be tried in any other way, or upon any other materials, than those on which it has been tried.

21. He has himself brought the case here on second appeal, as he could only have done in a regular suit, and the only difference which we can see from first to last between this proceeding and a regular suit, is that the plaintiff's application to the first Court is called a petition instead of a plaint, and that the case has been allowed to proceed without the payment of an institution fee.

22. The revenue is really the only sufferer. The error, if any, is a mere matter of form, which has not affected the trial of the case upon the merits, and which, therefore, (under Section 578 of the Code) we consider ourselves bound to disregard.

23. We find no reason to suppose that there is any error of law in the lower Court's judgment, except this informality, and we, therefore, think it right to entertain the appeal, and to dismiss it with costs.


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