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Ganendra Mohan Bhaduri and anr. Vs. Bhavani Charan Chakravarti - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata
Decided On
Reported inAIR1930Cal468
AppellantGanendra Mohan Bhaduri and anr.
RespondentBhavani Charan Chakravarti
Cases Referred and Sadasiva Pillai v. Ramalinga Pillai
Excerpt:
- .....filed. but it appears that all the parties agreed to certain modifications in the award and the learned judge gave effect to the modifications which were made by consent and they were entered in the two schedules of the decree which are marked b and c. there was an infant concerned and the learned judge made the order that the agreement was for his benefit. but at the present moment we are not concerned with the question of the infant's being bound by the agreement. as i have said, a decree was made the effect of which was to embody the award along with the two other documents which contained the stipulations on which the parties agreed before the learned judge. previous to this there were proceedings between the present parties which came up on appeal from the original side : see the.....
Judgment:

B.B. Ghose, J.

1. This is an appeal by the executor of the Will of Babu Rajendra Lal Goswarni against an order of the District Judge affirming the order of the Subordinate Judge of Hooghly holding that the respondents were entitled to execute the decree of this Court. The decree was made by Chaudhuri, J., dated February 1919. It was transmitted to the Hooghly Court for execution. An objection was taken by the appellants that the decree was void and without jurisdiction and, therefore, it was not capable of execution. The point in controversy arises out of proceedings in arbitration under the Arbitration Act which, it is admitted by the respondent, were very irregular. The dispute between the parties was referred to the arbitration of the late Mr. Byomkesh Chuckerbutty. He made an award which was filed under Section 11, Sub-section 2, Arbitration Act (9 of 1899). It does not appear what happened after the award was filed. But it appears that all the parties agreed to certain modifications in the award and the learned Judge gave effect to the modifications which were made by consent and they were entered in the two schedules of the decree which are marked B and C. There was an infant concerned and the learned Judge made the order that the agreement was for his benefit. But at the present moment we are not concerned with the question of the infant's being bound by the agreement. As I have said, a decree was made the effect of which was to embody the award along with the two other documents which contained the stipulations on which the parties agreed before the learned Judge. Previous to this there were proceedings between the present parties which came up on appeal from the Original Side : see the case of Jnanendra Mohan v. Annapurna Debi : AIR1927Cal562 . The question now in dispute was not considered at the time, but with regard to certain other matters an opinion was expressed by the learned Chief Justice about which there is no dispute now. The question which arose then between the parties was whether a decree could have been made by Chaudhuri, J., as was done. According to the provisions of the Arbitration Act the arbitrator only files the decree in Court and after that the Court may remit the award for reconsideration or set it aside under Sections 13 and 14 of the Act. When this has not been done, the award is enforceable as if it were a decree of the Court under Section 15 of the Act. As was pointed out by the learned Chief Justice in the case cited above, the procedure that was had before Chaudhuri, J., was a mixed procedure under the Arbitration Act and also under the provisions of Schedule 2, Civil P.C. As I have already said, the learned advocate for the respondent admits that the proceedings were irregular. It is contended on behalf of the appellant that the learned Judge had no jurisdiction to make a decree and that being so the executing Court ought not to have made an order for its execution. The present execution was sought for with regard to a portion of the award and that was contained in the second paragraph of it as regards the maintenance of the widow of the testator Rajendra Lal Goswarni. It was provided there, amongst other things, that the widow was to get a certain sum for maintenance per mensem and that was to be paid by the executors. It is contended that there was no suit pending in the High Court and, therefore, there could have been no decree whether by consent or otherwise; and the definition of a 'decree' in the Civil Procedure Code was referred to in support of the contention that unless there is a suit there cannot be a decree. Of course, this argument does not take cognizance of a decree being made on an award under para 20, Schedule 2, of the Code. It is next contended that as the Court had no jurisdiction to make a decree, the executing Court was entitled to refuse to execute it on the ground that the decree was a nullity according to the Full Bench case of Gora Chand Haldar v. Prafulla Kumar Roy : AIR1925Cal907 . It should be stated in passing that the learned District Judge was not quite accurate in saying that no objection was taken before him as to the jurisdiction of the High Court, because apparently that was the only objection on which they fought the case in the trial Court and that must have been the only ground upon which they attacked the decision of that Court on appeal. The question, therefore, which we have to consider is first whether the decree is a nullity or incapable of execution and secondly, if the decree is irregular and has been made on consent, it was one which could be enforced by way of execution.

2. The first point that arises for consideration is whether the learned Judge sitting on the original side had any jurisdiction to entertain the suit with regard to the properties involved in the matter of arbitration. It may be conceded that he had not, because only a small portion of the property was situated within the limits of the original jurisdiction of this Court and without leave under the Letters Patent the suit could not have been instituted on the original side with regard to the properties left by the testator. But under Section 2, Arbitration Act, the matter in dispute could be referred to an arbitrator, because the provision under that section is that the Act shall apply only in cases where if the subject-matter submitted to arbitration were the subject of a suit, the suit could, whether with leave or otherwise, be instituted in a Presidency town. It cannot be disputed that the suit could have been instituted with leave, but it could not be done without leave as I have already stated. Therefore, although the suit would have been without jurisdiction, the reference to arbitration was competent and this has been conceded by the learned Counsel for the appellant. The question, then, is whether the learned Judge had jurisdiction to make a decree on consent of the parties. It is contended that the only jurisdiction that the learned Judge had under the Arbitration Act was either to remit the award or to set it aside. He could not amend it himself in any manner and moreover he had no right to pass a decree upon the agreement on consent. On the other hand, it is contended on behalf of the respondent relying upon the cases of Pisini v. Attorney-General, Gibraltar [1880] 5 P.C. 516 and Sadasiva Pillai v. Ramalinga Pillai [1877] 2 I.A. 219, at p, 233, that there being no want of general jurisdiction in the Court if the parties consented that the award made by the arbitrator should be amended in a certain way, the learned Judge acted with the consent of the parties and therefore, although the proceeding was irregular, it was an act not absolutely without jurisdiction. It is said that if the learned Judge instead of accepting the petition of compromise himself remitted the award to the arbitrator and the arbitrator had made an award annexing these petitions to his original award, everything would have been quite regular and if the learned Judge, instead of going through that process with the consent of parties amended the award, it cannot be said that it is void and cannot be enforced. The whole question, therefore, turns upon the fact whether the act of the learned Judge was absolutely without jurisdiction or the learned Judge had jurisdiction but it was exercised with consent in an irregular manner. I do not think that this broad question arises out of the present proceedings as the execution that is sought for by the present application only refers to the question of maintenance which was contained in the original award of the arbitrator. That portion of the award was not amended by the learned Judge and the award not being remitted, it seems to me that under Section 15 of the Act -the widow could enforce the award as regards herself as if there was a decree in her favour by the Court. Mr. Bose on behalf of the appellant argues that the award does not exist, because it is merged in the decree. But it is contended by Mr. Mitter for the respondent that although the learned Judge passed a decree, he ought not to have made it because the Arbitration Act does not refer to a decree being made by the Court in accordance with the award. The short point, therefore, upon which I would decide this case is that here the applicant for execution asks for enforcement of the portion of the award which was in her favour and she can do so. The decree is itself of no force whatsoever and if that is wiped out, there remains the award and which, as I have already said, is enforceable as a decree of the Court under Section 15, Arbitration Act. The form of the application, inasmuch as it seeks to execute the decree, is bad, but the substance is there. On this ground this appeal stands dismissed with costs. Hearing fee three gold mohurs.

S.K. Ghose, J.

3. I agree.


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