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1940 DIGILAW 114 (ALL)

Ram Swarup v. Hardwari Mal

1940-08-06

YORKE, ZIA-UL-HASAN

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JUDGMENT Zia-ul-Hasan and Yorke, JJ. - This-is an application for revision of an order of the learned Civil Judge of Hardoi refusing to set aside the award of an arbitrator on the objection of the plaintiff-applicant. 2. A suit was brought by the present applicant in the Court of the learned Civil Judge of Hardoi against the opposite party for dissolution of a partnership and rendition of accounts. On the 5th April, 1934, the parties agreed to refer the matter in dispute to the arbitration of one Sunder Lal Gupta. The arbitrator filed his award on the 6th October, 1934, and on the 26th November, 1934, a preliminary decree was passed in terms of the award. On the 10th March, 1937, both the parties applied that the preparation of the final decree be referred to the arbitration of one Kedar Nath Vaish and on the 15th March, Kedar Nath Vaisb was appointed arbitrator for the purpose of drawing up the final decree. This arbitrator also filed his award but the present applicant objected to the award on various grounds, the chief of which was that the arbitrator had exceeded the limits of reference. These objections were heard by the learned Civil Judge and dismissed on the 15th November, 1937. A final decree was passed in terms of the arbitrator's award with a slight modification. The plaintiff has come upto this Court in revision against the order dismissing his objections to the award. 3. A preliminary objection is taken on behalf of the opposite-party that no revision against an order passing a decree in terms of an award is maintainable. 4. We are of opinion that the preliminary objection must be accepted. The point is concluded by a series of decisions of this Court and particularly by the case of Balak Ram v. Ramjiwan Lal Dikshit 1935 OWN 1036 : AIR 1936 Oudh 1 in which also the ground of objection was that the arbitrator had exceeded the terms of reference but it was held that when the objection has been disallowed by the trial Court and a decree passed in terms of the award, the decree cannot be set aside either by way of appeal or by way of revision. It was further remarked that in such a case even if the revisional jurisdiction of the High Court is not barred, revisional jurisdiction should not be exercised. It was further remarked that in such a case even if the revisional jurisdiction of the High Court is not barred, revisional jurisdiction should not be exercised. The learned Chief Judge in this case considered the law as laid down by the various High Courts, and though one of us who was a member of the Bench felt doubt if their Lordships of the Judicial Committee by their decision of Ghulam Jilani v. Muhammad Hasan (1902) 29 IA 51 : 29 Cal. 167 (P.C.) intended to lay down a universal rule that in no case whatever an order passing a decree in terms of an award of arbitrators is revisable by the High Court, yet in view of the preponderance of authority particularly of this Court he did not consider it necessary to differ from the view adopted by so many Courts. A little later the same question arose in this Court in the case of Radhey Lal v. Sunder Dei 1936 OWN 16 and in that case also after a careful consideration of the cases on the point, it was held that a revision against a decree passed in terms of an award is incompetent. In this case both an appeal and a revision were filed and it was remarked: It is thus clear that the appeal before us is incompetent. So far as the application for revision of the learned Munsif's order rejecting the objections to the award is concerned, it would be sufficient to quote the following remarks of their Lordships of the Judicial Committee in the case of Ghulam Jilani v. Muhammad Hasan. Their Lordships are inclined to agree with the view of Clark J that in the case of an award, revision would be more objectionable than an appeal. If an application in revision were admissible in a case like the present, the finality of any award would be open to question. 5. Reference was made in this case to the cases of Sheo Paltan v. Sukhdqo Singh (4) and Baldeo Sahai v. Abdur Rahim (5) and to decisions of other Courts. 6. The learned Counsel for the applicant relies on the cases of- (1) Mt. Mariam and Another Vs. Mt. Amina and Others . (2) Ramaswami Chettiar v. Venkatarama Aiyar AIR 1926 Mad. 201. (3) Kishnomal Hundomal v. Waparimal Jethomal AIR 1937 Sind. 171. 6. The learned Counsel for the applicant relies on the cases of- (1) Mt. Mariam and Another Vs. Mt. Amina and Others . (2) Ramaswami Chettiar v. Venkatarama Aiyar AIR 1926 Mad. 201. (3) Kishnomal Hundomal v. Waparimal Jethomal AIR 1937 Sind. 171. 1923 OWN 68 26 OC 107 : AIR 1923 Oudh 235 Bawa Gangaram v. Keshavdas Dewandas AIR 1937 Sind. 174 and (1932) 9 OWN 191 : AIR 1932 Oudh 156; AIR 1929 369 (Lahore) . 7. In the Allahabad case the objection was as to the validity of the order of reference itself and it was on the ground that the order of reference was bad that it was held that it could be challenged by way of revision. In the Lahore case also, the Court had owing to misinterpretation of the evidence and misconception as to the nature of the plaintiff's firm, wrongly assumed jurisdiction in referring the dispute to the arbitrators which jurisdiction was not vested in it by law. These cases, are therefore quite distinguishable from the case before us. The Madras and Sind cases no doubt lend support to the applicant's contention that the present application for revision is maintainable but having regard to the established view of this Court on the point, from which we see no good reason to differ, we cannot hold that the present application is maintainable. 8. The preliminary objection therefore succeeds, but we may mention that having heard arguments of the learned Counsel for parties on the merits also, we have come to the conclusion that the application has no force even on the merits, though owing to our decision on the preliminary question it is not necessary to give our reasons for the dismissal of the application on the merits. 9. The application is accordingly dismissed with costs.