1970 Supreme(All) 2

Allahbad High Court
GANGESHWARPRASAD,J.S.TRIVEDI,HARISWARUP
Shambhu Dayal - Appellant
Versus
Pt. Basdeo Sahai - Respondent
Decided On : 01/01/1970

Headnote:

An order setting aside an award decides a case within the meaning of Section 115 C.P.C. and is revisable under that section.

Fact of the Case:

The plaintiff filed a suit for declaration of title and possession over a house situate in Qasba Fizabad, district Agra. The suit was transferred to the court of the Munsif Fatehbad, Agra, by an order of the District Judge. During the pendency of the suit Gauri Shanker and Basant Lal defendants died and their heirs were brought on record. The case of the plaintiff was that the house in suit was the self-acquired and exclusive property of Saktoo who was an adopted son of Mukund and his wife and who succeeded to the entire property left by them as such. It was alleged that after the death of Saktoo his property devolved upon his son Gur Dayal and that the plaintiff was the son of Gur Dayal's sister, Smt. Jamuna Devi. It was further alleged that Gur Dayal executed a will dated January 16, 1916 providing that after his death his entire property would go to his wife Smt. Gulab Kuer and that the plaintiff would become the owner thereof after the death of Smt Gulab Kuar. In accordance with the provisions of the aforesaid will Smt. Gulab Kuar got the property left by her husband and she too executed a will dated May 4,1947. bequeathing all her property to the plaintiff. The plaintiff laid claim to the house in dispute under the two wills mentioned above and, alternatively, as an heir of Gur Dayal by virtue of being his sister's son. The plaintiff asserted that he had been exercising rights of ownership in the disputed house but as the defendants had recently put forward a claim in respect of it by filing an objection under Order XXI, Rule 100, C.P.C. in proceedings for execution of a decree for ejectment obtained by him against a tenant of the house and as their objection had been allowed he was compelled to institute the suit. The defendants resisted the suit and repudiated the title of the plaintiff. They denied that the plaintiff was Gur Dayal's sister's son or related to Gur Dayal in any manner and stated that neither Gur Dayal nor his widow Smt. Gulab Kuar had executed any will. They further contended that the house in dispute had been acquired by Saktoo from joint family funds, that his son Gurdayal was the owner thereof by right of survivorship after the death of Saktoo, that Gur Dayal had adopted as his son one Raghubir Prasad who died six months after the death of Gur Dayal and that Smt. Gulab Kuar inherited the house thereafter as a limited owner. According to the defendants, neither Gur Dayal nor his widow Smt. Gulab Kuar was competent to execute any will in respect of the house and the wills, if executed, were totally ineffective.

Finding of the Court:

The arbitrator found that the plaintiff was not entitled to any relief and his suit was to be dismissed with costs. The plaintiff preferred objections to the award but they were rejected by the Munsif who pronounced judgment in terms of the award and dismissed the suit with costs on April 18, 1953. On an appeal filed by the plaintiff, the predecessor-in-office of the learned Judge who passed the order under revision set aside the order of the Munsif and sent back the case to him with the direction that he should remit the award to the arbitrator and then dispose of the case according to law. Against the said appellate order the plaintiff came up in revision to this court. On April 14, 1961, that revision was allowed, the order passed in appeal was set aside and the case was sent back to the appellate court for being decided afresh. The case was, accordingly, reheard and the order against which this application in revision is directed was passed on July 18, 1963.

Issues: 1. Whether an order setting aside an award is a case decided within the meaning of Section 115 of the Code of Civil Procedure? 2. Whether the omission of the arbitrator to decide the question of adoption of Saktoo amounted to misconduct on his part? 3. Whether the acceptance by the arbitrator of a remuneration in excess of the amount fixed by the Court and of a fee for inspecting the house in dispute amounted to misconduct on his part?

Ratio Decidendi: 1. An order setting aside an award is a case decided within the meaning of Section 115 of the Code of Civil Procedure and is revisable under that section. 2. The omission of the arbitrator to decide the question of adoption of Saktoo did not amount to misconduct on his part, as the question was immaterial and irrelevant after the alleged will of Gurdayal was held not proved. 3. The acceptance by the arbitrator of a remuneration in excess of the amount fixed by the Court and of a fee for inspecting the house in dispute did not amount to misconduct on his part, as the payments were made voluntarily by the parties and there was no evidence of any bad motive or neglect of duty on the part of the arbitrator.

Final Decision: Revision allowed.