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Srimati Golnur Bibi Vs. Sheikh Abdus Samad and ors. - Court Judgment

LegalCrystal Citation
Subject Arbitration; Civil
CourtKolkata
Decided On
Reported inAIR1931Cal211
AppellantSrimati Golnur Bibi
RespondentSheikh Abdus Samad and ors.
Cases ReferredDurga Charan v. Ganga Dhar
Excerpt:
- mukerji, j.1. this appeal has been preferred by a plaintiff from an appellate order of the subordinate judge allowing an appeal from a decree based on an arbitration award and remanding the suit to the court of first instance for trial. the relevant facts are the following:2. the plaintiff had instituted a suit for declaration of title and certain consequential reliefs. the suit was instituted on 10th november 1925. written statements having been filed on behalf of the defence, a commissioner was appointed in march 1926 to make a local investigation. opposition was offered to the commissioner by some of the defendants when he was doing his work of measurement. the commissioner having reported the matter to the court, proceedings were instituted against one of the defendants, that is to.....
Judgment:

Mukerji, J.

1. This appeal has been preferred by a plaintiff from an appellate order of the Subordinate Judge allowing an appeal from a decree based on an arbitration award and remanding the suit to the Court of first instance for trial. The relevant facts are the following:

2. The plaintiff had instituted a suit for declaration of title and certain consequential reliefs. The suit was instituted on 10th November 1925. Written statements having been filed on behalf of the defence, a commissioner was appointed in March 1926 to make a local investigation. Opposition was offered to the commissioner by some of the defendants when he was doing his work of measurement. The commissioner having reported the matter to the Court, proceedings were instituted against one of the defendants, that is to say defendant 5, to consider whether he should be proceeded against criminally, but eventually the said proceedings were dismissed. The writ issued to the commissioner was recalled in June 1926, and thereafter another commissioner was appointed. In July 1926 the said commissioner on completing his work submitted a report. On 10th August 1926 a petition was filed in Court on behalf of the plaintiff and defendant 5 asking for a month's time for compromise and the plaintiff filed also another petition asking for summons on a witness. The Court adjourned the suit to the 13th August 1926 for hearing unless there was going to be a compromise in the meantime. On 13th August 1926, on a special petition of the plaintiff, two of her witnesses were examined and certain documents were received in evidence, and the suit was adjourned to 16th August 1926. On the last-mentioned date the plaintiff and some of the adult defendants put in a joint petition-agreeing to refer the dispute to certain arbitrators. On that the Munsif passed the following order:

Parties have put in a joint petition referring the ease to arbitration. But defendants 31 and 82 have not joined therein, and the Court guardian for the minor defendants 11, 14 and 15 and (the minor) pro-forma defendants 23 and 24 is not removed. The suit be put up to-morrow for orders.

3. By petitions filed on 17th and 19th August 1926 the defects noted in the above order were rectified; that is to say, defendants 31 and 32 joined in the application for reference, and the Court guardian for defendants 11, 14, 15, 23 and 24 being removed, their natural guardians were appointed guardians-ad-litem on their behalf. On 20th August 1926 the natural guardians appointed as guardians-ad-litem as aforesaid put in a petition stating that they had already applied on 16th August 1926 referring the dispute to arbitration for themselves and their wards, and praying that orders might be passed for reference of the dispute to the said arbitrators in accordance with the terms of the said petition. The Munsif thereupon Ordered:

Put up to-morrow in presence of the pleaders for the parties for order on the petition for referring the suit to arbitration.

4. The order sheet contains the following order passed by the Munsif on 28th August 1926:

The natural guardian for minor defendants 11, 14 and 15 and (the minor) pro-forma defendants 23 and 24 put in a petition stating that they have joined themselves, and on behalf of the minors in. the petition dated 16th August. 1926 for referring the suit to arbitration and praying to appoint the per one nominated therein as arbitrators accordingly. Heard pleaders. Parties agree to refer the suit to arbitration. Let Babu Togendra Nath Sen, Babu Manmatha Nath Sarkar and Babu Ekkari Basu nominated by the parties be appointed arbitrators.

5. The rest of the order need not be quoted.

6. The time within which the arbitrators were to submit their award was extended from time to time and eventually the award was filed on 18th November 1926. The parties were directed to file their objections, if any, within ten days. From an order passed on 30th November 1926 it would appear that the arbitrators had lost the original writ, and the copies of the plaint and of the written statement. The Munsif condoned this neglect, remarking in the order sheet:

The parties cannot deny that they referred the suit to the arbitrators by a joint petition. On their joint petition and prayer the suit was referred to the arbitrators for arbitration. Order No. 53 dated 20th August 1928 will show this.

7. On the said 30th November 1926 defendants 2, 3, 5, 7 and 8, all of them adults, filed an objection to the arbitrators' award. They complained of misconduct on the part of the arbitrators, alleging that the arbitrators had refused to take evidence, that they did not sit together to make their award and that two out of the three arbitrators were guilty of bias in favour of the plaintiff. They examined certain witnesses in support of these objections. The Munsif on 15th December 1926 held that the objection had not been filed within time but going nevertheless into the merits he overruled the objection and ordered a decree to be passed in accordance with the award. Such a decree was then drawn up.

8. From this decree an appeal was taken by the principal defendants in the suit, namely the adult defendants and the natural guardians, who had been appointed as guardians-ad-litem and had applied for a reference to arbitration as previously stated as representing their respective wards. On the filing of the appeal a question arose as to its competency and the pleader for the appellants being heard an exparte order was passed admitting the appeal on the ground taken that the reference to arbitration was not with the consent of all the parties.' The appeal was thus admitted but the question of its competency was left to be argued at the hearing as a preliminary point.

9. The Subordinate Judge held that the appeal was competent because

the Court had no jurisdiction to pass a decree in accordance with the award of the arbitrators.

who are not 'validly appointed as such.' The invalidity in the opinion of the learned Judge consisted in this that the mothers of the minors who were their natural guardians had no authority being Mahomedans, to deal with the property of their minor children. The learned Judge relied upon the following cases, viz. Ima nbandi v. Mutsaddi A.I.R. 1918 P.C. 11; Mohsinsuddin Ahmed v. Khabiruddin Ahmed A.I.R. 1921 Cal. 818 and Girja Nath Roy Choudhry v. Kanai Lal Mitra [1918] 43 I.C. 169. The plaintiff has come up before us on appeal as well as on revision. In these circumstances the question which arises at the outset for our consideration is whether the appeal before the Court below was competent, assuming for the moment that there was no valid reference to arbitration. The aubordinate Judge has observed that the i Appeal lay:

seeing that the entire foundation of the jurisdiction is removed as soon as it is established that the parties have failed to 'comply with the. fundamental requirement of the statute embodied in para. 1, Schedule 2 to Civil P.C.

10. For this view there is some authority so far as this Court is concerned and the most recent decision bearing on this question is that of my esteemed brother Mitter, J., in the case of Durga Charau Debnath v. Ganga Dhar Debnath : AIR1931Cal109 in which he has held that para. 16, Schedule 2 of the Code contemplates an award made in a case where there has been a valid submission to arbitration and an appeal lies where there is no valid submission for in that case there is no award on. which the Court can make a decree and the decree if made is based on something which is not an award and is therefore appealable. This decision must conclude the question, at least so far as the present case is concerned. I must however say that I stand committed to a contrary view which I expressed in a case that came up before me sometime ago and in which however having expressed that view I did not omit to give the intending appellant in the exercise of our revisional jurisdiction the relief that he stood in need of. It .is only right therefore that I should give some reasons for the opinion that I hold.

11. In this connexion it may not be uninteresting to trace briefly the history of the growth of this view in favour of an appeal in so far as it has obtained in this Court. In doing so I shall confine myself as far as possible to awards made on reference by the Court and decrees based on such awards. It would be too tedious were I to include in this review cases of arbitration without the Court's intervention. The relevant portion of Section 522 of the Code of 1862 ran in exactly the same words as sub-para. (2) of para. 16, Schedule 2 of the present Code:

No appeal shall lie from such decree except in so far as the decree is in excess of or not in accordance with the award.

12. Under Section 522 of the old Code it was held by several Courts including this Court that though a decree might be in perfect accordance with the award, yet if the award was invalid the decree might be attacked in appeal, the reason given being that Section 522 presumed a valid award and if the award was invalid it might be regarded as no award upon which a decree could be passed. It would be sufficient to refer to one of the later cases under the old Code viz., that of Kali Prosanno Ghose v. Rajani Kant Chatterjee [1898] 25 Cal. 141. In this case an appeal was filed from a decree based upon an award which had been made by the arbitrator who was a retained pleader of one of the parties. It was held broadly that an appeal would lie unless the award was a valid and legal award. The current judgments were delivered by Maclean, C.J. and Banerjee, J., citing decisions of this Court as well as of the other Courts in India ' giving all the reasons that might be urged in support of the view they took. Section 521 of the old Code corresponded to para. 15, Schedule 2 to the present Code. It had enacted that no award shall be set aside except upon the grounds (a), (b), or (c), and that no award shall be valid unless made within the period allowed by the Court. A distinction was sought to be made in that case between cases in which the award which was invalid under Section 521 having been made after the expiry of the time allowed by the Code and an award which is liable to be set aside under Clauses (a), (b); or (c), Section 521, Banerjee, J., was not prepared to make such a distinction and even went the length of holding that an award obtained by fraudulent concealment of facts would stand on the same footing. Maclean, C. J., observed:

It appears to me that if one were to hold the contrary view the result would be rather startling. It is not difficult to conceive cases in which the award may be obviously invalid, and where the Judge of first instance, either through misapprehension of the facts or the law, has yet made a decree affirming the award. In these cases is there to be no appeal? I think there ought to be and I concur in those decisions which lay down that there is.

13. The principle of the decision above mentioned was affirmed by a Full Bench in the case of Muhammad Wahiduddin v. Hakiman [1898] 25 Cal. 757, in which the validity of a submission to an arbitration without the intervention of the Court was impugned. In 1901 the Judicial Committee had before them a case Ghulam Jhilani v. Muhammad Hussain [1901] 29 Cal. 167, in which an appeal was preferred from a decree based upon an award which was challenged on the ground that no leave of the Court was taken by the guardian of a minor who had applied for the reference to arbitration, that the arbitrators had decided questions of jurisdiction, that they were guilty of judicial misconduct and so on. One of the questions decided by the Committee in that case was the question of competency of the appeal. Their Lordships held that no appeal lay and they 'entirely' concurred in the decision of the Full Bench of the Punjab High Court on the point. To understand what view their Lordships 'entirely' concurred in, it is necessary to set out a passage from the judgment of the said Pull Bench decision. It runs thus:

It may therefore be conceded that under the Code of 1859 it was competent to a party to object by way of appeal that what was purported to be an award was no award, or had no legal existence as an award ab initio', or that the decree was bad, because of an irregular procedure; in Court, either before the award de facto was. delivered or afterwards; and the cases under that Act go no further than this. But granting this, it by no means follows that it is still competent to a party to appeal on such grounds under the new Codes in face of the express prohibition introduced in 1877 and repeated in 1882. The; change of language in Section 522 may not affect the law as to what is essential to an award, which-' may properly be the subject of a final adjudication by a Judge, but it does very clearly affect the mode of procedure to be attacking the award or the decree made in pursuance of the award. It says in the plainest language and in language not contained in the earlier Code that no appeal lies from a decree, except as stated. The test now is whether the appellant alleges that the decree is not in accordance with the award, or in-excess of the award. If he does he can appeal to that extent. In all cases which do not satisfy this test, whatever remedy a party dissatisfied with the award and the decree may have, it can no longer be by way of appeal.

14. After the pronouncement of the Judicial Committee it was held in the case of Chintamoni Aditya v. Haladhar Maiti [1905] 2 C.L.J. 153 that the decisions of the Full Bench in Muhammad Wahiduddin v. Hahiman [1898] 25 Cal. 757 in so far as it affirmed the decision in Kali Prosanno Ghose v. Rajani Kant-Chatterjee, had been overruled by the Privy Council decision in Ghulam Jhilani v. Muhammad Hussain [1901] 29 Cal. 167. A distinction was now sought to be made between-two classes of cases, one in which misconduct was alleged and the other in which the validity of the reference which formed the foundation of the award was challenged. This distinction may be-illustrated by two typical cases, viz.. Haranund Naskar v. Doyal Chand Naskar [1905] 2 C.L.J. 142 and Parsidh Narain Singh v. Ghanashyam Narain Singh [1905] 9 C.W.N. 873 the former being a case of misconduct on the ground that the arbitrators had refused to take evidence and the latter a case in which it was alleged that all the parties had not joined in the agreement to refer.. It was held that the decision of the Judicial Committee in Ghulam Khan's case applied to the former, but not to the latter case. The same view was taken in. Ramesh Chandra Dhar v. Karunamoyi [1906] 33 Cal. 498 it being said that Section 522 of the Code presupposed a valid and legal award and not one upon which no decree could be pronounced. That was a case where an arbitrator after being functus officio, came in and signed an award and a decree was passed upon such an award. In another case however, namely the case of Chairman of the Purnea Municipality v. Siva Sankar Ram [1905] 33 Cal. 899 Parsidh Narain's case [1905] 9 C.W.N. 873 was expressly dissented from as being in conflict with the aforesaid decision of the Judicial Committee and this decision was followed in Lal Mohan Pal v. Surjya Kumar Das [1906] 11 C.W.N. 1152. The Code of 1908 then came into being. Under that Code Parsidh Narain's case [1905] 9 C.W.N. 873 was approved and Lal Mohan Pal's case [1906] 11 C. W. N. 1152 disapproved in a case in which the question arose whether an award was invalid because some of the parties interested did not join in the submission and the Court pronounced in favour of its invalidity : Seth Dooly Chand v. Mamuji Musaji [1916] 41 I.C. 295. It should be distinctly noted that in Seth Dooly Chand's case no question of maintainability of an appeal did or could arise in the case as it was an appeal not under the Code, but an appeal under the Letters Patent from an order passed by a Judge sitting on the original side on an application made to set aside the award.

15. It should not further be overlooked that what was approved or disapproved in Seth Dooly Chand's case [1916] 41 I.C. 295 was not any dictum as to the competency of the appeal in either Parsidh Narain's case [1905] 9 C.W.N. 873 or Lal Mohan Pal's case [1906] 11 C. W. N. 1152, but the decision of these cases on the merits, namely, whether a defect in the agreement invalidates the award. The point noted above in connexion with Seth Dooly Chand's case [1916] 41 I.C. 295 was overlooked, as I would presume to say with all respect, by the learned Judges who had to decide the case of Girija Nath Roy Choudhry v. Kanai Lal Mitra and who held that a decree passed on an award which was based on an invalid reference in which some of the parties did not join was open to appeal in spite of the decision of the Judicial Committee in Ghulam Khan's case, and this decision they arrived at purporting to follow Dooly Chand's case [1916] 41 I.C. 295 and Parsidh Narain's case . Next came the case of Fanindra Nath Roy: v. Dwarka Nath Boy [1919] 25 C.W.N. 832 in which the agreement to refer was signed on behalf of a party by her pleader who had no authority in that behalf. Chitty, J. taking the cases of Seth Dooly Chand v. Mamuji Musaji [1916] 41 I.C. 295 and Girija Nath Roy v. Kanai Lal Mitra as cases under the new Code which held in favour of the competency of an appeal in such circumstances, overruled the contention of the respondents before him that no appeal lay. This decision was; affirmed on appeal under the Letters Patent, but it does not appear that the question whether an appeal lay or not was raised in the Letters Patent appeal, The case of Fanindra Nath Roy v.. Dwarka Nath Roy [1919] 25 C.W.N. 832 has been relied upon in the recent decision in Durga Charan Debnath v. Ganga Dhar Debnath. The history given above of the view propounded in the case last mentioned in my opinion sufficiently shows that there is no real foundation for the view which has found favour with this Court that the decision of the Judicial Committee in Ghulam Khan's case did not apply to a case where the reference itself is impugned for want of consent of parties interested. The Punjab Full Bench decision which their Lordships expressly and entirely' approved, in my opinion, completely negatives such a view.

16. Nobody has ever ventured to contend that the prohibitory words of para. 16, Schedule 2, to the Code of 1908 are less stiff than the words of Section 522 of the Code of 1882. This view has its origin in the conception that an award which comes into existence on the basis of a reference which is impugned on the ground of irregularity Or want of jurisdiction is no award at all. It is true that Oldfield, J. in a case in which an award was submitted after the period fixed by the Court had expired [Chuha Mal v. Hari Ram [1886] 8 All. 548] held that 'there was no award on which the Court could make a decree' and this decision was approved by the Judicial Committee in the case of Raja Har Narain Singh v. Chaudhrain Bhagwant Kuar [1891] 13 All. 300. But when an award has been received and a decree is made in accordance with it, and one has to consider either Section 522 of the old Code or para. 16, Schedule 2 to the present Code in order to see whether an appeal will lie, to treat the award as no award at all is, in my judgment, entirely erroneous. In a case in which a decree based on an award which was impugned on the round that it had been made after the expiry of the period prescribed had been appealed from, Sir Lawrence Jenkins, C.J., observed:

But it is sought to escape from the provisions of Rule 16 by suggesting... that there was no award. I fail to see in view of the language used in E.15 that there was no award, because the rule deals explicitly with the portion of an award having been made after the expiration of the period allowed by the Court and it does not, as the Code of 1882 did, provide that such an award shall not be valid but, that such an award must no set aside so that it seems to me that it cannot he said that there was no award.

17. That case no doubt was one falling within para. 15, but I am unable to see why, if the validity of an award is challenged on the ground of irregularity or want of jurisdiction in the order of reference, the award which in fact exists should be allowed to be treated -as nonexistent in order to escape the plain provisions of para. 16. '

18. The matter upon which I most fully concur with my learned brother Mitter, J., is the meaning that he has placed upon the expression 'or being otherwise invalid' in Cl, (e), sub-para. (1), para. 15. He has held that the words must refer to invalidity of the kind referred to in the preceding sentences of the said clause. Whether the decision of the Judicial Committee in the case of Ram Pratap Chamaria v. Durga Prosad Chamaria A.I.R. 1925 P.C. 293 inforontially supports this interpretation or not, that interpretation in my opinion, is the only interpretation that the words bear. When the provision begins with the restrictive words, 'but no award shall be set aside except on one of the following grounds,' to hold that the words 'or being otherwise invalid' may let in any ground of invalidity, in my judgment, would be entirely wrong. I would therefore respectfully dissent from such decisions as have taken a contrary view. A ground of objection, which challenges the validity of the reference, is not a ground which may be put forward when under para. 15 the Court is asked to set aside an award; the objections to be taken at. that stage are objections to the proceedings as were;had before the arbitrators-. I am of opinion that the legislature has deliberately restricted para. 15 in this way, Leaving it to the parties to challenge, the reference, which is an order of the Court and not act of the arbitrator, by appropriate proceedings. It is true that those proceedings are not specifically defined in the Code, but the fact that no appeal is allowed. from the decree by no means suggests that there are no other means available. to an aggrieved party to get the order of reference quashed. Two such means may at once be pointed out: 'by way of an application for review, or by way of revision. However reluctant Courts may have been in the past to resort to Section 622 of the old Code or Section 115 of the present one, they are gradually leading to a normal liberal view in matters of this kind: see Kanhaiya Lal v. Jagannath Prasad A.I.R. 1921 All. 16 Gobind Singh v. Bhirgu Nath Singh A.I.R. 1924 All. 788 Merali v. Devji [1912] 36 Bom. 105 and Bhikalal v. Acharatlal A.I.R. 1925 Bom. 341. It should be remembered however that it has been observed by the Judicial Committee in the case of an award of which finality must attach under the law revision would be more objectionable than an appeal: Ghulam Khan v. Mahomad Hussan. Consequently, the revision should be asked for not of the arbitrator's award but of the order of the Court. In Ghulam Khan's case the application was for revision of the award; that is why their Lordships said that:

In cases falling under Head 1 the agreement to refer and the application to the Court founded upon it must have the concurrence of all parties concerned and the actual reference is the order of the Court. So that no question can arise as to the irregularity of proceedings up to that point.

19. I respectfully disagree with those cases in which it has been suggested on the strength of the aforesaid observations that an order of reference is not open to revision.

20. I have observed at the outset that so far at any rate as the present case is concerned we must proceed on the footing that there was a competent appeal before the Subordinate Judge. Now the view which the learned Judge, has taken, viz. that the natural 'guardians 'of the minor defendants were not competent to enter into the agreement for reference to arbitration is erroneous, because the natural guardians had been on the date that the reference was made, though not on the date of the application, guardians appointed by the Court. This position has bean overlooked by the Court. The cases upon which the learned Subordinate Judge has relied in this connexion have no application in such circumstances. The case of Imambundi v. Mutaddi deals with the powers of a Mahomedan mother to bind her minor child's property, and in no way governs the powers of a guardian though she may be a Mahomedan mother appointed by the Court. The case of Girija Nath Roy Chaudhry v. Kanai Lal Mitra was one in which some of the parties to the suit who had not appeared did not join in the agreement, and so is inapplicable. The case of Mohsinuddin v. Khabiruddin was one in which a Mahomedan mother had agreed on behalf of her minor child to refer a dispute to arbitration and such a reference was made without the intervention of the Court. The learned advocate for the respondents has seen the difficulty of supporting the judgment of the Subordinate Judge upon the ground on which it proceeds. He has however sought to rest his case upon a different ground and it is this, that to the agreement for reference which was put in no leave of the Court was taken as required by Order 32, Rule 7 of the Code. Such an objection on behalf of the respondents, in my opinion, ought not to be entertained and for the reasons which I shall presently give.

21. The question whether the respondents are competent to raise this objection must depend on the question whether in the appeal before the Subordinate Judge which they had filed, they were competent to urge it as one of their grounds. Under sub R. (2), Rule 7, Order 32:

any such agreement or compromise entered into without the leave of the Court so recorded shall be voidable against all parties other than the minor.

22. The provision as to leave is for the minor's benefit and intended to' protect his interest. The same guardians who entered into the agreements and submitted to the arbitration subsequently turned round after the award was made and a decree was passed thereon, and joined with the other defendants in preferring the appeal. It would be' entirely wrong on principle to allow these very guardians to urge such a contention as if on behalf of the minors. In the case of a compromise decree it has always bean held that non observance . of the condition as to leave does not render the decree void, but it is only voidable and that too at the option of a minor, that no other party to the suit can call it in question and that the minor may do so either on attaining majority or before then through a next friend. It has bean held by this Court that the proper course for a minor to set aside a compromise entered into by his guardian without the leave of the Court and the decree based upon it, is by way of an application for review in the first Court or by a separate suit, but not by way of appeal from the compromise decree: Rakhal Moni v. Adwyta Prosad [1903] 30 Cal. 613 and Biraj Mohini v. Chinta Moni [1901] 5 C.W.N. 877. I do not sea why the same principle should not apply to the case of a decree based on an arbitration award.

23. There is yet another ground on which this contention of the respondent cannot be entertained. I ask myself: Could this ground form the subject matter of an appeal to the lower Court from the decree based on the award Quite apart from the general question of right of appeal when the validity of the reference is challenged and which has been discussed above, I do not sea how we can get over the decision in Ghulam Khan's case which is directly in point on this question. It will be seen that one of the grounds taken against the decree was that the guardian of the minors had agreed to refer without the Court's leave, and yet their Lordships firmly put aside the contention that an appeal would lie. This therefore was not a ground which could succeed on the appeal, whatever may be its force in other suitable proceedings.

24. In this view of the matter I would overrule the respondent's contention' as not entertainable in the present proceedings. I would refrain from expressing any opinion on the question whether the agreement to refer to arbitration was in fact entered into without the leave of the Court in so far as the minors wore concerned, or whether if there was such leave granted but it was not recorded that omission vitiates the reference. The appeal is allowed and the order appealed from being set aside, the decree passed by the Court of first instance is restored. There will be no order for costs in this or in the lower appellate Court.

Mitter, J.

25. I agree with my learned brother in the conclusion which he has reached in this case that the appeal should be allowed and the order of the lower appellate Court should be set aside and that the decree passed by the Court of first instance should be restored.

26. One of the questions in controversy in this appeal is whether an appeal would lie against a decree based on an award made in a reference to arbitration in a pending suit where all the parties interested in the suit have not joined in the submission to arbitration. My learned brother has assumed that for the purposes of the present appeal the decision in the case of Durga Charan Debnath v. Ganga Dhar to which I was a party must conclude the question. The decision laid down that where a decree is based on an award founded on a reference to arbitration in a partition suit where all the parties did not join in the reference to arbitration, an appeal would lie from such a decree. My learned brother has said however that he stands committed to a contrary view which he expressed in a case that came up before him sometime ago and has given the reasons which induced him to take this view after review in the judicial decisions on the subject. The opinion held by my esteemed brother Mukerji, J., is entitled to very great weight and seems to be in accordance with the view taken by Sir Shadi Lal, C.J., and Kemp, J., in Balkishan v. Sohan Singh A.I.R. 1929 Lah. 476 and with the view taken by the learned Judges of the Allahabad High Court in Hari Shankar v. Ram Piari A.I.R. 1923 All. 502 and by the Bombay High Court in Mahomed Valli Asmal v. Valli Asmal A.I.R. 1924 Bom. 324.

27. The decision of the Allahabad, Lahore and Bombay High Courts seems to be based on the view that the words ' otherwise invalid ' in para. 15, Clause (1), Sub-clause (c), Schedule 2, Civil P.C., include an in-validity of the kind which makes the reference to arbitration without jurisdiction as all the parties interested had not concurred in the submission to arbitration. I however held in the case, Durga Charan v Gunga Dhar that the words otherwise invalid ' must refer to the same kind of validity as is referred to in the previous clauses of para. 15 or the kind of invalidity which is referred to in the previous sentences of Clause (c) and did not contemplate cases of the invalidity of an award on the ground that there was no valid reference as the fundamental condition laid down in para. 15, Schedule 2, viz., that there should be a concurrence of all the parties to the submission, had not been fulfilled. My esteemed brother Mukerji, J., agrees with this reasoning in my decision in Durga Charan Debnath v. Gunga Dhar, but does not agree with the conclusion that there is an appeal from decree based on an award made on such a void reference and my learned brother does not agree with the view of the other High Courts that the words 'otherwise invalid ' would include cases where the reference to arbitration was not with the concurrence of all the parties.

28. In this Court the earliest case on the point under the Code of 1882 is the decision of Rampini and Brett, JJ., in the case of Parsidh v. Ghanashyam Narain where it was held that an award on a reference under Section 506 of the Code of 1882 not agreed to by all the parties to the suit is invalid in law and that both an appeal and second appeal would lie against a decree based on such an award.

29. This case it is true, was dissented from by Maclean, C.J., and Sir Asutosh Mookerji, J., in the case of the Chairman of the Purnea Municipality v. Shiva Sankar Ram and it was held that no appeal lay in view of the decision of their Lordships of the Judicial Committee in Ghulam Khan's case.

30. In the case of Raja Har Narain their Lordships of the Judicial Committee held that where an award was filed after the time fixed for submission of the same it must Be regarded as invalid and their Lordships approved of the reasoning of Oldfield, J., in Chuha Mal v. Hari Ram that there was no award on which the Court could make a decree.

31. Under the Code of 1908 by para. 15, Clause (1) Sub-clause (c) it has been enacted that it is necessary to set aside an award filed after the expiry of the prescribed time thus superseding to some extent the view taken by their Lordships of the Judicial Committee in Raja Har Narain's case just referred to and consequently in view of this legislative change Sir Lawrence Jenkins, C. J., held that no appeal would lie from a judgment given in accordance with award either under the Letters Patent or the Code of Civil Procedure when the application to set aside the award on the ground that it was made after the expiration of the period allowed by the Court had been refused. In this state of facts Sir Lawrence Jenkins said. this:

I fail to see how it can be said in view of language used in Rule 15 that there was no award because that rule deals explicitly with the portion of an award having been made after the expiration of the period allowed by the Courts and it does not, as the Code of 1882 did, provide that such an award shall not be valid but that such an award must be set aside, so that it seems to me that it cannot be said that there was no award. The most that could be said is that the award was liable to be set aside.

32. These observations of Sir Lawrence Jenkins cannot fittingly be applied to a case where the reference to arbitration is without jurisdiction, not having been assented to by all the parties interested in the suit, for Rule 15 does not say that in this case also the award would require to be set aside.

33. In the case of Ghulam Jilani v. Muhammed Hussain stress is laid by their Lordships of the Judicial Committee on the proposition that the

agreement to refer and the application of the Court founded upon it must have the concurrence of all the parties concerned.

34. And it was therefore that in the case of Dooly Chand v. Mamuji Musaji both Sir Lancelot Sanderson, C. J., and Sir Asutosh Mookerjee, J., concurred in holding that if all the parties interested do not agree then the Court has no jurisdiction to make the order of reference and the order of reference is invalid not only against those who have not agreed but also against those who have. In this case it was assumed that there was an appeal from a decree based on such an award under the Letters Patent and no objection was taken to the competency of the appeal.

35. In the case of Fanindra v. Dwarka, Chitty, J., took the view that an appeal would lie where the reference was not agreed by all parties and apparently this view was accepted by Woodroffe and Chatterjee, JJ., as they heard the appeal from Chitty J.'s decision on the merits. And lastly in Girija Nath Roy Choudhry v. Kanai Lal Mitra, Chatterjea and Walmsley, JJ., followed the decision in the case of Parsidh Narain Singh;

36. These are the authorities on which I held that ' an appeal would lie. I fully recognize that there is divergence of judicial opinion on the point but so far as this Court is concerned I think I am right in stating that there is ' a preponderance of judicial opinion in favour of the view I take. So far as the merits of the case are concerned I am in entire agreement with my learned brother and feel that there is really no substance in the objection which was raised for the first time before the lower appellate Court that the mothers of the minors who had been appointed their guardians-ad-litem had no authority to consent to the reference to arbitration on behalf of their infant sons and this objection should never have been allowed by the Subordinate Judge below.

37. I cannot say that I have found the question as regards the competency of the appeal to the lower appellate Court free from difficulty but after full consideration of the authorities of this Court I have come to the conclusion satisfactory at least to my own mind. In the case Durga Charan v. Ganga Dhar I said that I felt myself bound by preponderance of: judicial opinion in our Court, and I adhere to the opinion which I then entertained.


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