1. This is an appeal from the judgment of my learned brother, Mr. Justice Greaves, whereby he dismissed an application by one Dooly Chand Srimali to record certain terms of settlement in the suit.
2. The ground upon which my learned brother decided this case was that in recording a settlement he must be satisfied without any shadow of doubt that the parties intended to settle the disputes and that they understood and comprehended that they were so doing and that the terms wore terms to which they assented and agreed. The learned Judge then expressed himself as not being satisfied that this was so in the present case : and, consequently, the application was dismissed.
3. The learned counsel, who appeared for the appellant Dooly Chand, directed his attention to this part of the case in opening the appeal. But the learned Counsel, for the respondent, Sir Binode Mitter, took certain; points which go to the jurisdiction of the learned Judge and to the procedure which was adopted in this case - points to which I shall refer presently.
4. The learned Counsel for the respondent frankly admitted that if this appeal depended upon the point which had been urged by the learned Counsel for the appellant in his opening and upon which the learned Judge decided the matter, he would have a strong case to meet. As to that part of the case I desire to express no opinion, because we did not hear Sir Binode Mitter the learned Counsel for the respondent's argument upon that part of the case. But I desire to make it clear that the decision which we are about to give in this appeal is not to be taken as prejudicing any rights of the appellant which he may have, of enforcing the agreement in other proceedings, which he may be advised to take.
5. The first point on which the learned Counsel for the respondent based his argument, was that the agreement which was arrived at in this case could not be recorded because of the terms of Order 23, Rule 3 of the Civil Procedure Code; and, for the purpose of considering this question, it is necessary to state certain facts. The suit was brought by Dooly Chand against two defendants, Mohanlalji and Gangadharji. Gangadharji was the father of Dooly Chand and Mohanlalji. Gangadharji had one other son whose name was Poonum Chand who was dead at the time of the institution of this suit. Poonum Chand left a widow called Mt. Chimni Bibi, and it was alleged that Chimni Bibi had adopted a son who was called Ramnarain. It is to be noted that neither Chimni Bibi nor Ramnarain was made a party to the suit. In paragraph 8 of the plaint the plaintiff alleged:
The defendant Mohanlal Srimali in or about the month of December, 1920, agreed that partition should be effected of the joint estate between the plaintiff and the defendants as also his infant son one Ramnarain Srimali, who is alleged to have been adopted by Musammat Chimni.
6. Paragraph 9 of the plaint further alleged that
the plaintiff has since discovered that the said Ramnarain Srimali is not the adopted son of the said Mt. Chimni, but in fact the defendant Mohanlal Srimali forced the said Mt. Chimni to adopt his said son, but the said Mt. Chimni did not validly consent to this adoption and in any event the plaintiff submits that the said adoption is illegal, void and inoperative against the plaintiff.
7. So that the plaintiff's case was that the only persons who were entitled to a share on the partition of the joint estate were the plaintiff himself, his father Gangadhar and his brother Mohanlal : and, the Draper in his plaint was that there should be a declaration that the plaintiff was entitled to a one-third share or part of the joint estate and that each of the defendants was entitled to a one-third share or part thereof.
8. The suit was not tried, but the three parties to the suit agreed that the matters in difference between them should be referred to arbitration : and, consequently, they made an application to the Court, and the Court made an order that the matters in difference between the parties to the suit should be referred to five arbitrators. Those five arbitrators never sat to consider the matter referred to them. What happened was this : At a certain time and at a certain place, which it is not necessary for me to specify more particularly, four of the arbitrators, the plaintiff, the defendants Mohanlal and Gangadhar and Mt. Chimni were present, and a long discussion took place. It was stated that the discussion continued from about 8 o'clock in the evening until about 8 in the following morning. Then an agreement was made which was executed by Gangadharji, Chimni Bibi, Mohanlalji and Dooly Chand : and, that execution by the parties was witnessed by the four so called arbitrators who were present : each one of them signed his name as a witness - one of them.
'At the request of the parties,' another after enquiring from the four persons the third, 'written at the request of all the four parties' and the fourth 'at the request of all.'
9. It is not now suggested by either side that this document can be regarded as an award. It is put forward by the appellant Dooly Chand as constituting the terms of the compromise which ought to be recorded, under the rule to which I shave referred namely, Order 23, Rule 3.
10. I ought to mention that the affidavit which was sworn by three of the so-called arbitrators alleged that the assets were distributed, so far as they could be distributed on the abovementioned occasion before the compromise was signed, and that the parties were so satisfied with the settlement that they gave Rs. 200 for charity. It is Mohanlal who objects to the recording of this agreement : and, in my judgment, the points which the learned Counsel for the respondent, has taken - which are not based upon the merits of the case at all - must be acceded to.
11. In the first place, the Court, before it records a compromise, must be satisfied that the suit has been adjusted wholly or in part by any lawful agreement or compromise. The parties to this compromise were not only the three parties to the suit, but the compromise purports to govern the rights and liabilities of Ramnarain and Mt. Chimni Bibi. Neither of those two persons was a party to the suit : neither of them has been heard by this Court, and one of them. Ramnarain, is an infant. It is difficult for the Court to say that the compromise is a lawful agreement or compromise, when the infant whose rights and liabilities are concluded by this agreement has not been heard and has not been represented before the Court. That does not by any means exhaust the difficulties with which the appellant is faced in this case. The rule provides that if the Court is satisfied that the suit has been adjusted by a lawful agreement, then the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith, so far as it relates to the suit. The agreement in this case contains many clauses which, in my judgment, are interdependent - the performance of one of which is dependent upon the performance of the other. It is not necessary for me to indicate the various clauses of the agreement which I have in mind : it is sufficient to say that there are many which are dependent, the one upon the other The subject-matter of the suit is the joint estate and the joint estate is the subject-matter of the agreement. It is difficult for me to see how a decree dealing with the subject-matter of the suit, namely, the joint estate, can be drawn up without; including all the provisions of the compromise which deal with the joint estate and without including the provisions which affect the rights and liabilities of the two persons, Mt. Chimni Bibi and Ramnarain, who were not parties to the suit, it seems to me that Order 23, Rule 3, does not contemplate the recording of such an agreement as the one now under consideration. That seems to me to be a further ground by reason of which this appeal must fail.
12. There is another matter which may be of lesser importance, and that is as regards the provisions of Clause 3, Sub-clause (2) of the second schedule of the Civil Procedure Code. That sub-clause provides that:
Where a matter is referred to arbitration, the Court shall not, save in the manner and to the extent provided in the schedule, deal with such matter in the same suit.
13. The argument presented on behalf of the respondent is that the matters in dispute tin this suit were referred to arbitration; that reference has never been superseded : and, under those circumstances, it is not competent to the Court to record the terms of compromise. The order of reference was made on the 16th of December, 1921, and an office copy of the order was delivered to one of the arbitrators on the 24th of January, 1922. The award had to be made within three months from that date. The award was not made within three months from that date; and, no application was made to the learned Judge under the provisions of Clause 8 of the second schedule. That clause provides that
where the arbitrators or umpire cannot complete the award within the period specified in the order, the Court may, if it thinks fit, either allow further time and from time to time, either before or after the expiration of the period fixed for the making of the award, enlarge such period; or may make an order superseding the arbitration and in such case shall proceed with the suit.
14. In this case the plaintiff did not male any application to the Court for enlarging the time for making the award; nor did he make an application for an order superseding the arbitration.
15. The result is that, in my judgment, although this is a point which might have been got over by the plaintiff, if proper proceedings had been taken and a proper application had been male upon sufficient materials, the fact remains that such an o application was not made; and, consequently, this point, on which Sir Binode Mitter relied, is a further ground for the rejection of the plaintiff's appeal.
16. For these reasons, and repeating that nothing that I have said is intended to prejudice any rights which the plaintiff may have in any other proceeding for the purpose of enforcing the agreement or compromise. I am of opinion that this appeal should be dismissed with costs.
17. I agree.
18. I am not going to repeat what my Lord has said. I will only refer to an objection: taken by Sir Binode Mitter in limine - an objection to which I can see no answer.
19. The case turns on Rule 3 of Order 23 of the Civil Procedure Code. Before an application under that rule to record an agreement can be acceded to, the applicant is required to satisfy the Court that the agreement which he sets up is a lawful agreement. The question, therefore, whether the agreement is lawful or not, is the first question which the Court has to decide; but that question cannot well be discussed unless the parties to the agreement are properly before the Court. Here Punamchand's widow Mt. Chimni and Bamnarain - the son whom she has adopted to her deceased husband - are parties, to the agreement. Not only so but Ramnarain is a minor. Yet neither of them has been brought on the record or is represented before us. Assuming that this defect could be remedied I should not, for my part, be disposed at this state to grant any indulgence in, the way of time or facilities for the purpose. In this view, it is of course not only unnecessary but impossible effectually to decide on its merits the question whether the agreement is a lawful one. Accordingly, we do not enter into the merits, and, as I understand the, position, it will still be open to any party to the agreement, who may desire to do so, to institute independent proceedings for its enforcement.
20. With these observations I agree that the appeal should be dismissed with costs.