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High Court Of Rajasthan
Judgename : Jagat Narayan
RAM CHANDER - Appellant
Versus
JAMNA SHANKAR - Respondent
Civil Revn. 261 Of 1955
Decided On : 09/23/1960
ARBITRATION - Award - Filing - Notice - Absence of - Effect - Decree passed without giving opportunity to file objections - Legality - Revision - Maintainability - Arbitration Act, 1940 (10 of 1940), Ss. 14 (2), 17.
Fact of the Case:
The plaintiffs and defendants were members of a joint Hindu family. The defendants borrowed money from the plaintiffs on the security of houses and ornaments. A settlement of accounts took place in 1942 and a sum of Rs. 10,101/- was found due to the plaintiffs from the defendants. Some further sums were advanced thereafter and payments were also made. The plaintiffs instituted a suit for recovery of Rs. 4598/4/- as principal and Rs. 2561/1/- as interest. The suit was referred to arbitration through the intervention of the court. The arbitrators filed their award on 23-12-1954 in the court of the Civil Judge Sojat. The impugned judgment and decree were passed by the learned Civil Judge on the same date.
Finding of the Court:
1. The order dated 23-12-1954 passing judgment and decree on the award without giving an opportunity to the defendants to file objections against it amounted to a refusal to set aside the award and an appeal lay against it under Section 39 (1) (iv) of the Arbitration Act. No revision application is therefore competent in view of the ruling of this Court in Swarup Narain v. Gopinath, 1953 Raj LW 629: (AIR 1953 Raj 137) (FB). 2. A decree purporting to have been passed under Section 17 was not a legal decree and an appeal lay against it. A revision application was consequently not competent. 3. An application lay under Order 9 Rule 13 for setting aside the ex parte decree passed on 28-13-1954 and the order of the learned Civil judge Sojat refusing to set it aside was appealable under Order 43 Rule 1 (d ). No revision application consequently lies in the present case as the matter could have been brought before this Court by filing an appeal against the order dated 19-10-1955 as held in Swarup Narains case, 1953 raj LW 629 : (AIR 1953 Raj 137) (FB). 4. The revision application against the order dated 23-12-1954 filed on 11-11-1955 is grossly belated. 5. Substantial justice has been dons in the case and even if there is any technical illegality this Court should not interfere in the exercise of its discretionary jurisdiction under Section 115 C. P. C.
Issues: 1. Whether a revision application is maintainable against an order passing judgment and decree on an award without giving an opportunity to the defendants to file objections against it? 2. Whether a decree purporting to have been passed under Section 17 is a legal decree? 3. Whether an application lies under Order 9 Rule 13 for setting aside the ex parte decree passed on 28-13-1954? 4. Whether the revision application against the order dated 23-12-1954 filed on 11-11-1955 is grossly belated? 5. Whether substantial justice has been done in the case and even if there is any technical illegality this Court should not interfere in the exercise of its discretionary jurisdiction under Section 115 C. P. C.?
Ratio Decidendi: 1. An order dated 23-12-1954 passing judgment and decree on the award without giving an opportunity to the defendants to file objections against it amounted to a refusal to set aside the award and an appeal lay against it under Section 39 (1) (iv) of the Arbitration Act. No revision application is therefore competent in view of the ruling of this Court in Swarup Narain v. Gopinath, 1953 Raj LW 629: (AIR 1953 Raj 137) (FB). 2. A decree purporting to have been passed under Section 17 was not a legal decree and an appeal lay against it. A revision application was consequently not competent. 3. An application lay under Order 9 Rule 13 for setting aside the ex parte decree passed on 28-13-1954 and the order of the learned Civil judge Sojat refusing to set it aside was appealable under Order 43 Rule 1 (d ). No revision application consequently lies in the present case as the matter could have been brought before this Court by filing an appeal against the order dated 19-10-1955 as held in Swarup Narains case, 1953 raj LW 629 : (AIR 1953 Raj 137) (FB). 4. The revision application against the order dated 23-12-1954 filed on 11-11-1955 is grossly belated. 5. Substantial justice has been dons in the case and even if there is any technical illegality this Court should not interfere in the exercise of its discretionary jurisdiction under Section 115 C. P. C.
Final Decision: The revision application is dismissed.
JAGAT NARAYAN, J.
( 1 ) THIS is a revision application by the defendants in a suit which was referred to arbitration through the intervention of the court against an order of the Civil Judge sojat pronouncing judgment and granting decree according to the award under section 17 of the Arbitration Act, 1940 on the ground that no notice as contemplated under Section 14 (2) was given and they were consequently deprived of an opportunity of filing objections against the award.
( 2 ) THE application was contested on behalf of the plaintiffs. A number of preliminary objections were taken. But before going into them it is necessary to state the facts.
( 3 ) THE plaintiffs are members of a joint Hindu family. The defendants also constitute a joint Hindu family, Jassulal defendant No. 1 being the father of mangilal, Shyamlal and Ramchander defendants Nos. 2 to 4. It is not disputed now that Jassulal as manager of the family of the defendants borrowed money from time to time from the plaintiffs on the security of houses and ornaments. The case of the plaintiffs is that a settlement of accounts took place in Sm. 2002 and a sum of Rs, 10,101/- was found due to the plaintiffs from the defendants. Some further sums were advanced thereafter and payments were also made. It was claimed that a sum of Rs. 4598/4/-remained due as principal and Rs. 2561/1/- as interest for the recovery of which the present suit was instituted in the court of the Civil Judge Sojat on 24-10-49. Jassulal filed a written statement on behalf of himself and his minor son Ramchander who was aged 13 years at that time. Another written statement was filed by Shyamlal. Later on Mangilal appeared. Both the parties referred the suit to arbitration through the court. The arbitrators filed their award on 23-12-54 in, the court of the Civil Judge Sojat. The impugned judgment and decree were passed by the learned Civil Judge on the same date. The order-sheet of 23-12-54 runs as follows:
"plaintiff No. 3 present along with Shri Maya Shanker Vakil. Defendant shyamlal present. The arbitrators filed the award today. The parties present in court have no objection to make against the award. A decree is accordingly passed in favour of the plaintiffs against the defendants in accordance with the award. "
( 4 ) ON 4-3-55 two applications were filed--one on behalf of Mangilal and Shyamlal and another on behalf of Ramchander--in which it was alleged that no notice of the filing of the award was served On them; that they had no opportunity of filing objections against it, and that the decree passed on the basis of the award was without jurisdiction and praying that it may be set aside. Ramchanders application purported to be under Order 9 Rule 13 and Section 151.
( 5 ) THE applications were opposed on behalf of the plaintiffs. The learned Civil judge rejected them on 19-10-55 on the ground that the decree could not be set aside on an application under Order 9 Rule 13 and that the proper remedy of the defendants was to go to the High Court in revision. The present revision application was then filed on 11-11-55 against the judgment and decree which the learned Civil Judge passed on 23-12-54 on the basis of the award.
( 6 ) SHYAMLAL has alleged in the revision application that he was not present in court on 23-12-54. In support of the allegation it is urged that his signatures do not appear on the order-sheet of that date. Order-sheets are not invariably signed by all the parties present in court on a particular day. The order-sheet dated 23-1254 shows that it was Carefully scrutinised by the presiding officer before he signed it. At first it was written in the order-sheet that all the defendants were present along with their Vakil Shri Karan Raj. This was scored out and initialled by the presiding officer and it was recorded that only Shyamlal defendant was present. I accordingly hold that Shyamlal was present on 23-12-54 in court when the award was filed and that he told the presi
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