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1989 Supreme(Ori) 52
High Court Of Orissa
A. K. PADHI
NARENDRA KUMAR - Appellant
Versus
UPENDRA KUMAR - Respondent
C. R. 169 Of 1985
Decided On : 03/31/1989
B.R.Outray, R.Ch.Mohanty, R.K.MOHANTY, R.K.MOHAPATRA, S.S.DAS, U.C.Panda
A decree passed by a court making an arbitration award a rule of the Court by consent is not a compromise decree but an award made a rule of the Court, and the only remedy available to challenge such a decree is by way of an appeal under the Arbitration Act.
Headnote:
ARBITRATION - DECREE - COMPROMISE - AWARD MADE RULE OF COURT - NOT A COMPROMISE DECREE - APPEAL ONLY REMEDY - SECTION 151, C. P. C. NOT MAINTAINABLE - ORDER 32, RULE 7, C. P. C. - NON-COMPLIANCE - EFFECT - AWARD MADE RULE OF COURT - NOT A COMPROMISE DECREE - LEAVE OF COURT NOT NECESSARY - MINOR - GUARDIAN - WRITTEN STATEMENT TO MAKE AWARD RULE OF COURT - NO CHALLENGE BY GUARDIAN - ADULT PARTY CANNOT CHALLENGE - ARBITRATION - DEATH OF ONE ARBITRATOR BEFORE REFERENCE - REST OF ARBITRATORS ENTERING INTO REFERENCE - JURISDICTION NOT AFFECTED - ARBITRATION - PROPERTIES COMING UNDER CONSOLIDATION OPERATION - NO NOTIFICATION FILED - NO ORDER PASSED - ARBITRATION PROCEEDING NOT ABATED - COMPROMISE PETITION - NOT SIGNED BY ALL PARTIES - DECREE PASSED - NOT ASSAILABLE - SUBSTANTIAL JUSTICE DONE - SECTION 115, C. P. C. - DISCRETIONARY POWER - NOT EXERCISED.
Fact of the Case:
Petitioner challenged the order refusing to recall the order making an arbitration award a rule of the Court. The award was made in a private arbitration proceeding agreed upon by the petitioner and opposite parties, who were co-sharers. The petitioner filed an objection to the award, but later withdrew it by filing a compromise petition along with one of the opposite parties. The trial court passed a decree making the award a rule of the Court. The petitioner then filed a petition under Section 151, C. P. C. to recall the order, which was dismissed by the trial court.
Finding of the Court:
The court held that the decree passed by the trial court was not a compromise decree but an award made a rule of the Court by consent. Therefore, the only remedy available to the petitioner was to file an appeal under the Arbitration Act, and a petition under Section 151, C. P. C. was not maintainable. The court also held that the provisions of Order 32, Rule 7, C. P. C., which require the leave of the court before a next friend or guardian can enter into an agreement or compromise on behalf of a minor, were not applicable in this case because the decree was not a compromise decree. Additionally, the court found that the death of one arbitrator before the reference did not affect the jurisdiction of the remaining arbitrators, as all parties had submitted to their jurisdiction. The court also held that the arbitration proceeding was not abated due to the properties coming under the consolidation operation, as no notification or order to that effect had been filed before the trial court. The court further held that the compromise petition not being signed by all parties did not render the decree passed on its basis assailable, as the other defendants had already filed written statements to make the award a rule of the Court. Finally, the court held that substantial justice had been done and declined to exercise its discretionary power under Section 115, C. P. C. to interfere with the decree.
Issues: 1. Whether the decree passed by the trial court was a compromise decree or an award made a rule of the Court by consent? 2. Whether a petition under Section 151, C. P. C. was maintainable to challenge the decree? 3. Whether the provisions of Order 32, Rule 7, C. P. C. were applicable to the case? 4. Whether the death of one arbitrator before the reference affected the jurisdiction of the remaining arbitrators? 5. Whether the arbitration proceeding was abated due to the properties coming under the consolidation operation? 6. Whether the compromise petition not being signed by all parties rendered the decree passed on its basis assailable? 7. Whether substantial justice had been done in the case?
Ratio Decidendi: 1. A decree passed by a court making an arbitration award a rule of the Court by consent is not a compromise decree but an award made a rule of the Court. 2. The only remedy available to challenge such a decree is by way of an appeal under the Arbitration Act, and a petition under Section 151, C. P. C. is not maintainable. 3. The provisions of Order 32, Rule 7, C. P. C. are not applicable to a decree passed making an arbitration award a rule of the Court by consent, as such a decree is not a compromise decree. 4. The death of one arbitrator before the reference does not affect the jurisdiction of the remaining arbitrators, if all parties have submitted to their jurisdiction. 5. An arbitration proceeding is not abated due to the properties coming under the consolidation operation, unless a notification or order to that effect is filed before the court. 6. A compromise petition not being signed by all parties does not render the decree passed on its basis assailable, if the other defendants have already filed written statements to make the award a rule of the Court. 7. The court has the discretionary power to interfere with a decree under Section 115, C. P. C., but this power will not be exercised if substantial justice has been done.
Final Decision: The revision petition was dismissed.
A. K. PADHI, J.
( 1 ) THE petitioner in this revision challenges the order dated 22-12-1984 passed by the learned Subordinate Judge, Jaipur refusing to recall the order dated 10-3-1981.
( 2 ) THE brief facts of the case are as follows : the petitioner and opposite parties, who are co-sharers, agreed on 8-1-1978 to partition the suit properties by private arbitrators. Misc. Case No. 56 of 1979 was filed for extension of time. On 24-9-1979, the agreement was filed in the Court and on 17-11-1979 the Court extended the time for filing the arbitration award. On 2-1-1980 the award was submitted to Court. Title Suit No. 20 of 1980 was registered to make the award a rule of the Court on 18-2-1980. In the meantime on 15-2-1980 the petitioner filed an objection challenging the award. Petitioner was arrayed as the plaintiff and the other co-sharers were arryed as defendants. On 27-6-1980, the mother guardian, defendant No. 7, sought permission to represent and conduct the case on behalf of the minor defendants 3 to 6. On 7-8-1980 defendants 2 to 7 filed their written statement. Defendant No. 7, the mother guardian filed a written statement on behalf of the minors praying therein to dismiss the objection of the plaintiff and to make the award a rule of the Court. On 9-3-1981 a compromise petition for acceptance of the award was filed by the petitioner and defendant No. 2. In the said petition it was stated that the difference between the parties has been resolved and they admit the award, and prayed the Court to make the award a rule of the Court. On 10-3-1981 the order making the award, a rule of the Court is as follows : "in view of the compromise effected by the parties as per the compromise petition dt. 9-3-81, the Award filed on 2-1-80 by Arbitrators is accepted. The suit be decreed in terms of the Award and the Award be made part of the decree. " on 9-4-1981, the petition filed a petition under Section 151. C. P. C. to recall the order dated 10-3-1981. The trial Court passed the impugned, order by giving the finding that since the decree is appealable the petition under Section 151, C. P. C. is not maintainable.
( 3 ) THE learned advocate for the petitioner submitted that the decree passed on compromise is illegal as - (A) One out of the seven named arbitrators had died before passing of the award; (b) During the pendency of the arbitration proceeding the disputed properties came under the Consolidation operation, hence the arbitrators had lost jurisdiction to partition the properties; (c) The compromise petition having not been signed by all the parties could not have been acted upon by the Court; (d) The learned trial Court did not comply with the provisions of Order 32, Rule 7, C. P. C. though some of the defendants were minors; and (e) As the award has been made a rule of Court and a decree has been passed on compromise suit being barred and there being no provision for appeal against such decree a petition under Section 151, C. P. C. was maintainable. The trial Court holding that the petition under Section 151, C. P. C. was not maintainable is an order without jurisdiction.
( 4 ) THE learned advocate for the opposite parties submitted that - (A) The order dated 10-3-1981 is not a compromise decree as envisaged under Order 23, Rule 3, C. P. C. The petitioner alone had filed objection to the award and the compromise petition in fact was a petition for withdrawing the objection. The decree which has been passed is an award which has been made a rule of the Court and the only mode to challenge it is by way of an appeal under the Arbitration Act; (b) No notification having been filed to prove the disputed properties had come under the consolidation operation, the Court had no jurisdiction to take such averments into consideration; (c) One of the arbitrators had died before the Arbitrators entered into reference and all the parties having submitted to the jurisdiction of the rest of the Arbitrators - none can challenge the same; (
