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Dwarkanath Roy and ors. Vs. Fanindra Nath Roy and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in49Ind.Cas.262
AppellantDwarkanath Roy and ors.
RespondentFanindra Nath Roy and ors.
Cases Referred and Girijanath Roy Chowdhury v. Kanai Lal Mitra
Excerpt:
civil procedure code (act v of 1908), schedule ii, para. 1 - arbitration--reference--award, decree passed in credence with--appeal, whether lies. - .....to whom a gomasta bad given a vakalatnama. this vakalatnama does not confer a power to refer the suit to arbitration, though it does confer powers to file petitions of compromise and so forth. it has been repeatedly held that the provisions of the paragraph mast be strictly complied with 'in order that there may be a valid reference. reference may be made to the oases of ramjiawan ram v. kali chamn singh 29 a. 429 : 4 a.l.j. 342 : a.w.n. (1907) 139; seth dooly chand v. mamuji musaji 41 ind. cas. 295 : 21 c.w.n. 387 : 25 c.l.j. 339 and girijanath roy chowdhury v. kanai lal mitra 43 ind. cas. 169 : 27 c.l.j. 339 at. p. 341. it was argued for the respondents that no appeal lay, but the two oases last cited show that an appeal will lie in a case where the reference itself is impugned for.....
Judgment:

Charles Chitty, J.

1. This is an appeal from a decree of the Subordinate Judge confirming the decree of the Munsif pronouncing judgment in accordance with an award. The appeal is preferred by defendants Nos. 1 and 2, but the ground put forward in support of this appeal is a ground peculiar to defendant No. 2. She is a pardanashin lady residing at Benares. She and her two sons were parties defendant to a suit for recovery of possession of land. An agreement was said to have been made by the parties to refer the matter to arbitration and the Court made an order of reference. Defendant No. 2 afterwards objected to the reference, admitting that one had been made but saying that she did not expect to get justice at the hands of the arbitrator. Before this Court it is urged that there was no valid reference to arbitration made by the parties through the Court. It appears that the provisions of paragraph 1 of Schedule II to the Civil Procedure Code were not complied with in the case of this defendant, who was undoubtedly interested in the matters in difference in the suit along with her sons. The agreement to refer, so far as it purported to be made by her, was signed for her by a Pleader to whom a Gomasta bad given a Vakalatnama. This Vakalatnama does not confer a power to refer the suit to arbitration, though it does confer powers to file petitions of compromise and so forth. It has been repeatedly held that the provisions of the paragraph mast be strictly complied with 'in order that there may be a valid reference. Reference may be made to the oases of Ramjiawan Ram v. Kali Chamn Singh 29 A. 429 : 4 A.L.J. 342 : A.W.N. (1907) 139; Seth Dooly Chand v. Mamuji Musaji 41 Ind. Cas. 295 : 21 C.W.N. 387 : 25 C.L.J. 339 and Girijanath Roy Chowdhury v. Kanai Lal Mitra 43 Ind. Cas. 169 : 27 C.L.J. 339 at. p. 341. It was argued for the respondents that no appeal lay, but the two oases last cited show that an appeal will lie in a case where the reference itself is impugned for want of consent of the parties interested. The appeal is allowed, the decrees of the Courts below are set aside and the case is remanded to the Court of first instance to be continued from the point at which it stood when the invalid order of reference was made. Costs of this appeal will abide the result of the suit.


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