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1955 Supreme(All) 1
HIGH COURT OF ALLAHBAD
AGARWALA, BRIJ MOHAN LALL, M. L. CHATURVEDI, JJ.
Moradhwaj
Versus
Bhudar Das
F.A.F.O. No.205 of 1946, and F.A.F.O. No.27 of 1947; Ex. Second Appeal No.1114 of 1947 and Second Appeal No.947 of 1947
Decided On : 04-01-1955
Shambhu Prasad, for Appellant; K.C. Saxena and J. Swarup, for Respondent.
Headnote:
ARBITRATION - REFERENCE - JURISDICTION OF APPELLATE AND EXECUTION COURTS - AWARD - EFFECT AS ADJUSTMENT.
Fact of the Case:
The parties were closely related to each other. They were originally members of a joint Hindu family. Then there was a partition between them. They now own contiguous houses. Disputes about easementary rights regarding doors janalas parnalas and walls cropped up and in connection with them there was some marpit between them. Several litigations were pending in the civil and criminal courts in connection with these disputes, when on 11-12-1944 an agreement of reference was entered into between them by which they referred all these litigations as well as other disputes to arbitrators.
Finding of the Court:
1. An appellate court has jurisdiction to refer a matter to arbitration. 2. An execution court cannot refer a dispute in execution proceedings to arbitration. 3. An award obtained on a reference outside court while a suit or other proceeding is pending, can be treated as an adjustment under O.23, R.3, on under O.21, R.2, Civil P.C. only if it has been consented to by all parties concerned after the award was made.
Issues: 1. Can an execution Court or an appellate Court refer a case pending before it to arbitrators for decision? 2. Can an award made out of Court, be given effect to as an adjustment of a pending case when one of the parties objects to this being done?
Ratio Decidendi: 1. The word "suit" in S.21, Arbitration Act does not include an execution proceeding or an appeal and that Ss.107 and 141, Civil P.C. or S.8, General Clauses Act do not apply to the provisions of the Arbitration Act. 2. The word "Court" as defined in S.2(c) of the Arbitration Act refers to a court of original jurisdiction. 3. Section 107, Civil P.C. read with S.8, General Clauses Act empowers an appellate Court to refer an appeal from a decree in a suit to arbitration. 4. Section 141, Civil P.C. does not apply to execution proceedings, S.8, General Clauses Act can be of no help in the matter of arbitration in execution proceedings. 5. An award obtained without the intervention of Court in respect of matters which are the subject-matter of a proceeding pending in a court of law can only be given effect to as an adjustment under O.23, R.2, or under O.23, R.3, Civil P.C. if all the parties interested give their consent to this being done and not otherwise.
Final Decision: The appeals were referred to a larger Bench for deciding the appeals in the light of the opinion of the Full Bench.
AGARWALA, J.:- These are four connected appeals and arise in the following circumstances. The parties are closely related to each other. They were originally members of a joint Hindu family. Then there was a partition between them. They now own contiguous houses. Disputes about easementary rights regarding doors janalas parnalas and walls cropped up and in connection with them there was some marpit between them. Several litigations were pending in the civil and criminal courts in connection with these disputes, when on 11-12-1944 an agreement of reference was entered into between them by which they referred all these litigations as well as other disputes to arbitrators. The litigations then pending were four in number. One was an appeal No.218 of 1944 arising out of suit No.575 of 1943 (L. Moor Dhuj v. L. Bhumandal Dass), the second was Execution Appeal No.111 of 1944, arising out of execution proceedings in connection with the decree in suit No.196 of 1934, filed by Moradhwaj against Lala Bhumandal Das, the third was suit No.12 of 1944 for recovery of Rs.2100/- as damages for assault, Moradhwaj, plaintiff v. Bhumandal Das and Bhudar Das, and the fourth was an execution application No.698 of 1940 in connection with suit No.184 of 1934, Moradhwaj v. Bhumandal Das.
All these cases were pending in the court of the Civil Judge of Etah. There was a fifth matter in dispute. A criminal complaint was filed by Ajit Prasad, son of Moradhwaj against Bhumandal Das and eight other persons under Ss.147, 452 and 323, I.P.C. The accused were convicted by the first Court but were acquitted in appeal. Ajit Prasad intended to file a revision application in the High Court but had not actually filed it. All these matters were referred to arbitration by an agreement of reference dated 11-12-1944. Applications were then made in all the four cases on 12-12-1944, that these cases be referred to the arbitrators mentioned in the agreement of reference. In execution case No.698 of 1940, the application was rejected on the ground that an execution case could not be referred to arbitration. In execution appeal No.111 of 1944, suit No.12 of 1944 and civil appeal No.218 of 1944, the Court, however, referred the cases to the arbitrators by an order dated 11-1-1945. The award was ultimately made on 14-3-1945.
In the award, the arbitrators stated that the parties had mentioned to them that so far as the criminal case was concerned, there was no dispute pending between them, and that for that reason they were not giving any award on that dispute. In other cases they gave their award decreeing some and dismissing the others. An application was made under S.14, Arbitration Act by Lala Bhumandal Das and Lala Bhudar Das which was registered as suit No.14 of 1945 for directing the arbitrators to file the award in Court and to pass a decree in terms thereof. Moradhwaj and Ajit Prasad objected that the award was invalid for various reasons and no decree could be passed in terms thereof.
Their main objection was that it was incompetent either for the execution Court or the appellate Court to refer the matters pending before them to arbitration under the Arbitration Act. But their objections were dismissed and decrees were passed in terms of the award, both in the application under S.14 (suit No.14 of 1945) as well as in the other three pending cases, namely, in execution appeal No.111 of 1944, suit No.12 of 1944 and Civil Appeal No.218 of 1944, in accordance with the terms of the award. Against these four decrees Lala Moradhwaj and Ajit Prasad have come up in appeal to this Court.
2. First Appeal from Order No.205 of 1946 arises out of the application made under S.14, Arbitration Act (suit No.14 of 1945), Execution Second Appeal No.1114 of 1947 arises out of Execution Appeal No.111 of 1944, Second Appeal No.947 of 1947 arises out of Appeal No.218 of 1944 and First Appeal from Order No.27 of 1947 arises out of suit No.12 of 1944. It only remains to mention that the
