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Hari Dass Vs. Budhu and ors. - Court Judgment

LegalCrystal Citation
SubjectArbitration
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Revn. No. 35 of 1953
Judge
Reported inAIR1956HP42
ActsArbitration Act, 1940 - Sections 17, 39 and 39(1); ;Himachal Pradesh (Courts) Order; ;Code of Civil Procedure (CPC) , 1908 - Section 115
AppellantHari Dass
RespondentBudhu and ors.
Appellant Advocate C.L. Puri, Adv.
Respondent Advocate Thakar Das, Adv.
DispositionPetition dismissed
Cases ReferredMt. Ishwar Dei v. Chhedu
Excerpt:
- .....party to file an appeal in accordance with the provisions of section 39.'(b)--'mt. ishwar dei v. chhedu', air 1952 all 802 (b), where the decision was:'where, order of the court is a composite order, which, on the one hand, dismisses the objections of the defendant to the award and, on the other hand, adopts the award and directs that a decree should be framed in terms of the judgment passed by it, the order is to be treated to be an order refusing to set aside an award and appeal is maintainable against the order under section 39(vi).'therefore, in my opinion, it was open to the petitioner to go up in appeal against the order refusing to set aside the award. if the petitioner has not cared to avail himself of that right, he has to thank himself. having omitted to avail himself of the.....
Judgment:
ORDER

Ramabhadran, J.C.

1. This revision petition by a plaintiff arises out of an interlocutory order passed in a suit for the recovery of Rs. 492/-, representing the price of eight trees, alleged to have been sold by the defendants. Proviso (ii) to para. 35, Himachal Pradesh (Courts) Order, expressly debars a revision application in such a suit. In an extreme case, this Court could interfere under para. 35(1)(a), provided it appears that the Court below acted in the exercise of its jurisdiction with material irregularity, in passing the order sought to be revised. As I shall show presently, such is not the case here.

2. The order, in question, was one refusing to stay the proceedings in the suit pending the disposal of a revision petition in this Court. In declining to stay proceedings, the trial Court remarked that the revision petition, then pending in this Court, did not relate to the five trees in question. The revision petition, in question, arose out of a declaratory suit respecting Khatas 345/55 and 56, situate in village Malath, pargana Ubadesh, Kumarsain.

That suit was dismissed by the Subordinate Judge of Theog and his decision was upheld, in appeal, by the learned District Judge of Mahasu. The revision petition, arising out of that suit, was also rejected by this Court on 2-12-1953. It does not appear further that during the pendency of this revision petition, this Court was requested to stay the proceedings in the other case.

It may not be out of place to point out that in the last mentioned case, i.e., the suit for the recovery of Rs. 492/-, parties agreed to refer the matter to arbitration. The finding of the arbitrator was that the trees, in question, were not situated in the lands, which formed the subject-matter of the declaratory suit. Consequently, the suit for the recovery of Rs. 492/- was dismissed, in accordancewith the award.

Under these circumstances, I am unable to hold that the Subordinate Judge's order dated 24-6-1953, refusing to stay the proceedings wasvitiated by any material irregularity.

3. Learned counsel for the respondents further pointed out that the relief claimed in this revision petition is not only that the order dated 24-6-1953 be set aside but also that the decree passed by the Subordinate Judge, in accordance with the award, be also set aside. In this connection, he lightly pointed out that the plaintiff had filed objections to the award and requested the trial Court to set it aside.

That prayer was refused by the Subordinate Judge. Accordingly under Section 39(1)(vi) of the Arbitration Act, it was open to the petitioner to go up in appeal against the order refusing to set aside the award. Mr. Puri for the petitioner contendedthat by means of one and the same order, the Subordinate Judge not only declined to set aside the award, but also passed a decree in accordance with it. Consequently, he argued that he, was debarred from filing ah appeal, in view of the provisions of Section 17 of the Arbitration Act.

The order passed by the Subordinate Judge was a composite one and the petitioner--in my opinion--was not debarred from filing an appeal against so much of the order as purported to refuse to set aside the award. I am supported in my view by the following rulings: (a)--'Bholanath Chatterjee v. Chandra Shekhar', AIR 1950 Cal 53 (A), where G. N. Das, J., observed as follows:

'An appeal lies against decision overruling objections to the filing of an award under Section 39(1)(vi).The fact that by the same order the Court also directed a decree to be passed in terms of the, award does not take away the right of the aggrieved party to file an appeal in accordance with the provisions of Section 39.'

(b)--'Mt. Ishwar Dei v. Chhedu', AIR 1952 All 802 (B), where the decision was:

'Where, order of the Court is a composite order, which, on the one hand, dismisses the objections of the defendant to the award and, on the other hand, adopts the award and directs that a decree should be framed in terms of the judgment passed by it, the order is to be treated to be an order refusing to set aside an award and appeal is maintainable against the order under Section 39(vi).'

Therefore, in my opinion, it was open to the petitioner to go up in appeal against the order refusing to set aside the award. If the petitioner has not cared to avail himself of that right, he has to thank himself. Having omitted to avail himself of the remedy, conferred by law, it is not open to the petitioner to attempt to get behind the decree in the guise of a revision petition against an order refusing to stay the proceedings.

4. Thus, in whatever way the matter is lookedat, the petition must fail. It is, accordingly, rejected with costs assessed at Rs. 30/-.


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