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Shaikh Debir-ud-dIn Vs. Sm. Amina Bibi and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in78Ind.Cas.335
AppellantShaikh Debir-ud-din
RespondentSm. Amina Bibi and ors.
Cases ReferredDavalure Ramayya v. Davalure Venkata Subba Rao
Excerpt:
civil procedure code (act v of i908), section 115, order xxxii, rule 7, schedule ii - arbitration--award not submitted, within time--fresh date fixed--award whethervalid--agreement to refer to arbitration, whether agreement within the meaning of order xxxii, rule 7--revision. - .....is, that the arbitrators had no jurisdiction in the mattter because the award was made after the time had passed within which the arbitrators were bound to make their award. but the court has found 'that the time was duly extended by the court and within such extension or time the award was made,' there is no substance in the first contention.7. the seoond contention is this. it is urged that the award was made on a reference ordered by the court, but that one of the parties thereto was a minor represented by a guardian and that the provisions of order xxxii, rule 7 had not been complied with and, therefore, that the whole basis of the arbitrator's jurisdiction was destroyed and that the award was not validly made and is null and void. the question, therefore, is whether or notthe.....
Judgment:

Suhrawardy, J.

1. This Rule is directed against the judgment and decree passed by the Munsif of Uluberia on the 30th November 1922 according to the award filed in the suit. Two substantial objections are taken to the decree passed by the lower Court. First, that the Munsif had no jurisdiction to pass a decree in accordance with an award filed after the time fixed by the Court for the filing of it, and, secondly, that the agreement to refer the matter to arbitration was entered into on behalf of a minor plaintiff by his mother without the sanction of the Court. The award, therefore, is not valid in law and should not be enforced.

2. A preliminary objection has been taken to the affect that no petition in revision lies against a judgment and decree passed in accordance with an award filed in the suit following the arbitration proceedings under Schedule II to the Civil Procedure Code ; and in support of this submission reference has been made to the case of Gholam Khan v. Mohamad Hassan 29 C. 167 : 6 C.W.N. 226 : 29 I.A. 51 : 12 M.L.J. 77 : 4 Bom. L.K. 161 : 8 Sar. P.C.J. 154 : 25 P.R. 1902 (P.C.). There is a great deal of force in the objection ; but, at the same time, I am not prepared to lay down as a general rule that in no case in which an award has been filed and decree passed in accordance there with can this Court interfere under Section 115, Civil Procedure Code. It is conceivable that there may be cases in which the arbitrators or the Court may have exceeded their jurisdiction or acted with materisl irregularity in the conduct of the proceedings. But I am of opinion that the present case is covered by the observations of their Lordships of the Judicial Committee in the case referred to.

3. With regard to the first ground of the objection, it appears that the matter was referred to the arbitration of certain persons and the 10th November 1922 was fixed for the filing of the award.On that date, the award not having been filed, the Court passed the following order: 'The arbitrators have not submitted their award. Issue Takid at once fixing the 10th November for hearing.' The officer who had passed that order was the same officer who passed the decree ; and he says that his intention in passing that order was to extend the time to the 11th November for the filing of the award, though he had not said so in so many words. Stress is laid upon the case of Digambari Bewa v. Joy Narain Das 16 Ind. Cas. 228 : 16 C.L.J. 578, and it is contended on the authority of that; Case that, unless the Court expressly extend the time to file an award, the mere adjournment of the case to a future date cannot be taken to have extended the time. On a close examination of the case it, however, appears that it is an authority for the proposition that an order like the present may be taken as an order for extending the time for filing the award. In that case the final order was for the disposal of the case on the evidence to be produced by the parties before the Court on the adjourned date. The learned Judges held that would not be an extension of time for filing the award. In my opinion, by the order passed by the learned Munsif on the 23rd October, the Court intended to extend the period for the filing of the award to the 10th November. The award was filed on the 4th November 1922. It thus appears that the award was filed in time and is not invalid on the ground that it was filed out of time.

4. The second objection is bassed on Order XXXII, Rule 7, and it is said that the agreement to refert the matter to arbitration is an agreement which requires the sanction of the Court; and reliance is placed upon the decision of the Madras High Court in Davuluru Vijaya Ram mayya v. Davuluru Venkat Subba Rao 82 Ind. Cas. 881 : 89 M. 853 : 80 M.L.J. 465. The Allahabad High Court has taken a different view and it has laid down authoritatively that an agreement to refer to arbitration is not such an agreement as is comtemplated by Order XXXII, Rule 7. See the case of Lutawcm v. Lachiya 21 Ind. Cas. 989 : 36 A. 69 : 12 A.L.J. 57 There is no direct authority on the point in this Court but the Allahabad view was approved by Maclean, C.J. in the caseof Annada Krishna Dey v. Jogendra Nath Dey 8 C.L.J. 294 Personally speaking, I think that the decision of the Allahabad High Court is correct.But it is not necessary to pursue the matter further because, in the view I take of the powers of this Court to interfere under Section 115, Civil Procedure Code, this application is incompetent. A similar objection on the ground of the agreement not having been entered on behalf of a minor with the sanction of the Court was taken in the case before the Judicial Committee, namely, the case of Ghulam Khan v, Mohammed Hassan 29 C. 167 : 6 C.W.N. 226 : 29 I.A. 51 : 12 M.L.J. 77 : 4 Bom. L.K. 161 : 8 Sar. P.C.J. 154 : 25 P.R. 1902 (P.C.). Their Lordships, without dealing specifically with this objection, remarked that no appeal lies from a decree passed in accordance with the award and that a petition in revision under Section 622 of the old Code will be more objectionable as it will destroy finality of arbitration proceedings. Assuming that the lower Court has committed an error of law in overruling the objection that the agreement was not validly entered into by the minor plaintiff, I do not think that it has committed any such irregular exercise of jurisdiction as would justify us in interfering with the decree passed. I may observe in passing that the case on which great reliance was placed by the petitioner, namely, the Full Bench decision of the Madras High Court above alluded to, was a case in which a separate suit was filed by the minor on the.., ground that he was not bound by the award or the decree based thereon as he was not a party to the agreement, and the decree was not challenged in revision.

5. One other ground is taken, namely, that the question referred to the arbitrator for determination was whether the kobala which was sought to be set aside was genuine or not; but the arbitrators have gone further than that and found that the kobala was executed by the deceased Khoda Bux but that there was a partial failure of consideration and was executed by the deceased under circumstances as would render it liable to be set aside. The Court below has overruled that objection and has not acted without jurisdiction or illegally or with material irregularity in determining that question. I do not think that a strong case has been made out for our interference under Section 115, Civil Procedure Code. The Rule is, therefore, discharged with costs. We assess the hearing fee at two gold mohurs.

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6. I am of the same opinion. This is an application for a Rule under Section 115, Civil Procedure Code, calling upon the opposite party to show cause why a certain award should not be set aside. Two contentions have been urged by the applicant in support of the Rule. The first is, that the arbitrators had no jurisdiction in the mattter because the award was made after the time had passed within which the arbitrators were bound to make their award. But the Court has found 'that the time was duly extended by the Court and within such extension or time the award was made,' There is no substance in the first contention.

7. The seoond contention is this. It is urged that the award was made on a reference ordered by the Court, but that one of the parties thereto was a minor represented by a guardian and that the provisions of Order XXXII, Rule 7 had not been Complied with and, therefore, that the whole basis of the arbitrator's jurisdiction was destroyed and that the award was not validly made and is null and void. The question, therefore, is whether or notthe arbitrators possessed jurisdiction to make the award. Now, in considering that question it is necessary to bear in mind that this reference to arbitration was not created merely by agreement between the parties.It was ordered by the Court, and that fact, in my opinion, materially affects the jurisdiction of the arbitrators. This question was for consideration by the Judicial Committee of the Privy Council in the case of Ghulam Khan v. Muhammad Hassan 29 C. 167 : 6 C.W.N. 226 : 29 I.A. 51 : 12 M.L.J. 77 : 4 Bom. L.K. 161 : 8 Sar. P.C.J. 154 : 25 P.R. 1902 (P.C.). Lord Macnaghten in giving the judgment of the Board referred to the different forms of arbitration under three heads.The first head related to occasions where the parties to a litigation desire to refer their differences to arbitration, and an order of reference is made by the Court. The second head relates to Occasions where the parties, without having recourse to litigation, enter into an agreement to refer their differences to arbitrators to obtain the sanction of the Court to the award that is made; and the third head relates to Occasions where the agreement to arbitrate is made by the parties without any reference whatever to the Court In dealing with arbitrations under head I, that is to say, arbitrations which are ordered by the Court, Lord Macnaghten makes the following observation : ' In cases falling under Heads II and III, the provisions relating to Cases under Head I are to be observed so far as applicable. But there is this difference which does not seem to have been always kept in view in the Courts in India. In cases falling under Head I 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 regularity of the proceedings up to that point.' Now (supara p. 183) what happened in this case was, that the parties to the suit agreed that the matter in dispute between them should be referred to arbitration by order of the Court and one of the parties was an infant appearing by a guardian. On the application for an order of reference being made it was open to the Court in its discretion either to grant or to refuse the application. Having regard to the circumstances, the Court in this case in its discretion made an order of reference. The Court had jurisdiction when 'hearing the application for an order of reference to consider a petition under Order XXXII, Rule 7; but whether it did so or not, the order of reference will stand, and no question could arise there after as to the regularity of the proceedings which were preliminary to the order of reference. Now, in my opinion, the effeot of the order of reference was that the arbitrators possessed jurisdiction to proceed with and to complete the arbitration not with standing the fact that a petition has not been preferred under Order XXXII, Rule 7. See the case of Lutawan v. Lachiya). With great respect, I am not prepared to accept the view to the contrary which was expressed by the Madras High Court in the case of Davalure Ramayya v. Davalure Venkata Subba Rao 32 Ind. Cas. 881 : 39 M. 853 : 30 M.L.J. 465. It is to be observed, however, that in that case the form proceeding adopted was not application to the Court to exercise its jurisdiction under Section 115, but a suit by the minor to set aside the compromise. Whether the minor is' entitled to dispute the validity of the award in a suit, I express no opinion ; but having regard to the provisions of Section 115, Civil Procedure Code, I find my self unable to come to the conclusion that in this case there was any error of law or in respect of jurisdiction committed which calls for the exercise of the jurisdiction which the High Court possesses under the provisions of this section. In these circumstances, I agree that this proceeding is misconceived and that the Rule should be discharged.


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