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Gour Chandra Pramanik Vs. Ranaghat Peoples Bank Ltd. and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1935Cal396
AppellantGour Chandra Pramanik
RespondentRanaghat Peoples Bank Ltd. and anr.
Excerpt:
- .....and in appeal the question of non-service of notice or summons was not even pressed. the other questions raised in this appeal were dealt with by the executing court and the court of appeal at that stage.4. the judgments of the courts disposing of the objections raised by the appellant before us under section 47 of the code, are before us, and they were documents used at the hearing of the case by the courts below. on a careful consideration of these documents exs. f, g and k, we have no hesitation in coming to the conclusion, that the questions that were specifically raised by the appellant and decided against him in the proceeding in execution, could not be allowed to be reagitated again in a separate suit, as the plaintiff appellant before us wanted to do, by instituting a suit.....
Judgment:

1. This is an appeal by the plaintiff in a suit with the prayer for a, declaration that an award made in favour of the Ranaghat People's Bank, Ltd., the defendant in the suit, under Rule 22 of the Rules framed under Section 43, Co-operative Societies Act (2 of 1912), against the plaintiff for recovery of Rs. 489-8-0, was without jurisdiction, and null and void as such. It was the case of the plaintiff before the Court that the award had not the force of a decree; was not capable of execution as decree passed by a competent civil Court. The plaintiff prayed for the relief that a permanent injunction be granted to restrain the Bank for executing the award. The Bank asserted that the award was a valid award under the law, and was not liable to be called in question in any civil Court.

2. The Courts below have agreed in dismissing the plaintiff's suit; and in support of the appeal to this Court it was urged that inasmuch as in the reference the Bank had included a stranger as surety for the debt, the whole reference was incompetent in law, and in this connection the point was raised that there was variation of the reference by the arbitrator who made the award; one of the sureties, the stranger not having been mentioned at all, and the rights and liabilities as between the principal debtor and the two sureties mentioned in the reference to the arbitration had not been determined by the arbitrator. It was in the next place urged in support of the appeal that the lower appellate Court had put an erroneous construction upon the Clauses (6) and (7), Rule 22 in holding that these clauses covered the case of an award made by a single arbitrator; it being contended on this part of the case, that the rules contemplated that to have the force of a decree there must be an award by three arbitrators. The contention lastly urged on behalf of the appellant was that there being no evidence on the record to show that any notice or summons was served upon the appellant, the Court below should not have presumed service of such notice or summons, and that notice or summons not having been served on the appellant, the whole proceeding of arbitration and the award made by the arbitrators were without jurisdiction.

3. The questions thus raised are no doubt substantial questions relating to the validity of the award sought to be challenged by the plaintiff-appellant in this Court; but it has to be noticed in this connection that all these questions were the subject-matter of consideration before the civil Court at a previous stage The question raised in the case before the Courts below, and those submitted for our consideration were raised in the form of objections in a proceeding in execution started by the Ranaghat Peoples Bank Limited for enforcement of the award passed by the arbitrator, by realization of the amount covered by the award, from the plaintiff, the appellant before us. The questions were decided by the executing Court, in favour of the decree-holder Bank, the objections raised by the appellant having been negatived. It would appear from the decisions given in the execution proceedings under S 47, Civil P.C., that the question of service of notice or summons when the reference to the arbitrator was dealt with, was decided against the appellant by the executing Court, and in appeal the question of non-service of notice or summons was not even pressed. The other questions raised in this appeal were dealt with by the executing Court and the Court of appeal at that stage.

4. The judgments of the Courts disposing of the objections raised by the appellant before us under Section 47 of the Code, are before us, and they were documents used at the hearing of the case by the Courts below. On a careful consideration of these documents Exs. F, G and K, we have no hesitation in coming to the conclusion, that the questions that were specifically raised by the appellant and decided against him in the proceeding in execution, could not be allowed to be reagitated again in a separate suit, as the plaintiff appellant before us wanted to do, by instituting a suit for a declaration that the award made by the arbitrator was void and without jurisdiction, with a prayer for permanent injunction to restrain the Ranaghat People's Bank Ltd., from executing the award having the force of a decree against him.

5. The point was distinctly raised before the Court of appeal below that all the questions arising for consideration in the suit were raised in the form of objections in execution proceedings, and were decided against the plaintiff in the present suit. The lower appellate Court appreciated that position, and expressed the opinion that where the decree was alleged to have been made without jurisdiction objection to that effect could be taken in execution proceedings; but observed that the issues raised in the proceedings in execution, could not be taken to have been directly and substantially raised in the former suit between the parties, the proceeding in execution not being a suit. It is difficult for us to follow the real import and significance of the observation contained in the judgment of the learned District Judge in the Court of appeal below and we entirely disagree with the view taken by the Judge if he meant to hold that the questions raised in the suit out of which this appeal has arisen could not be taken to have arisen directly and substantially in a proceeding started on objections raised to the execution of an award having the force of a decree, under Section 47, Civil P.C.

6. In our judgment, the selfsame questions going to the root of the award challenging the award on the ground that it was on the face of it an invalid award, and could not be allowed to be executed as a valid and binding decree, were raised and decided against the plaintiff in the suit in which the appeal before us has arisen. In view of the decision, of the Courts come to in the proceedings in execution, as evidenced by the judgments passed in the same by the primary and the appellate Court, the questions raised in the suit and in the appeal before us, could not be allowed to be reagitated. The decision of those questions was binding on the appellant, and we are unable to hold that the appellant could be allowed to reagitate them, in a separate suit, after his objection under Section 47, Civil P.C., was overruled in proceedings in execution.

7. The decision we have come to, as mentioned above, concludes this appeal entirely. It may be mentioned that after having heard arguments bearing upon the questions raised in the suit out of which this appeal has arisen, upon the three main, points raised in support of this appeal, specifically referred to at the commencement of this judgment, we see no reason whatsoever for disagreeing with the conclusion arrived at by the Courts below on these points. In our opinion, the Courts below have rightly held on the merits of the case, that there was no substance in any of the grounds raised by the plaintiff-appellant in this Court, for the purpose of assailing the award made by an arbitrator appointed under the provisions contained in the Rules framed under Section 43, Co-operative Societies Act (2 of 1912). In the result the appeal fails, and it is dismissed with costs.


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