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1965 DIGILAW 538 (ALL)

Nand Kishore v. Mool Chandra

1965-12-10

V.G.OAK

body1965
JUDGMENT : This is an Execution First Appeal by a decree-holder. According to Mr. K.N. Seth, appearing for the appellants, this appeal has arisen under the following circumstances. 2. There were certain differences between Mool Chand, Amar Nath, Nand Kishore and others. The disputes were referred to arbitration. Sri Ram Nath, arbitrator gave an award on 3-6-1957. The award contained provision for a decree in favour of Nand Kishore and others against Mool Chand and others. On 15-9-1958 the arbitrator filed his award in the Court of the First Civil Judge, Kanpur under Section 14 of the Arbitration Act, 1940 (hereinafter referred to as the Act). On 25-9-1958 the case was transferred by the District Judge, Kanpur from the file of the First Civil Judge. Kanpur to the file of the First Additional Civil Judge, Kanpur. On 14-11-1959 the parties filed a compromise before the Court. It may requested that the award might be made a rule of the Court. Accordingly, the Court (the First Additional Civil Judge, Kanpur) passed an order on 26-11-1959 making the award a rule of the Court. On 19-3-1962. Nand Kishore and others applied for execution of the decree dated 26-11-1959. When the learned First Additional Civil Judge, Kanpur took up the case on 16-3-1963, he concluded that the transfer of the original case to his file was illegal, and the decree dated 26-11-1959 had been passed without jurisdiction. Holding that the decree was a nullify, the learned Civil Judge dismissed the execution application. Nand Kishore and two others have, therefore, appealed against that order, dated 16-3-1963. No one appeared before me on behalf of the judgment debtors-respondents. 3. In order to decide whether the decree dated 26-11-1959 is a nullity, it will be convenient to examine certain provisions of the Act. Section 14 provides for the filing of the award in Court Section 17 enables the Court to deliver judgment in terms of the award. Section 31 deals with jurisdiction Section 31 of the Act states : "31 (1) Subject to the provisions of this Act, an award may be filed in any Court having jurisdiction in the matter to which the reference relates. Section 31 deals with jurisdiction Section 31 of the Act states : "31 (1) Subject to the provisions of this Act, an award may be filed in any Court having jurisdiction in the matter to which the reference relates. (2) Notwithstanding anything contained in any other law for the time being in force and save as otherwise provided in this Act, all questions regarding the validity, effect or existence of an award or an arbitration agreement between the parties to the agreement or persons claiming under them shall be decided by the Court in which the award under the agreement has been, or may be, filed, and by no other Court. (3) All applications regarding the conduct of arbitration proceedings or otherwise arising out of such proceedings shall be made to the Court where the award has been, or may be filed, and to no other Court. (4) Not withstanding anything contained elsewhere in this Act or in any other law for the time being in force, where in any reference any application under this Act has been made in a Court competent to entertain it, that Court alone shall have jurisdiction over the arbitration proceedings and all subsequent applications arising out of that reference and the arbitration proceedings shall be made in that Court and in no other Court." 4. The learned First Additional Civil Judge, Kanpur has taken the view that he had no jurisdiction to deal with the award filed by the arbitrator before the First Civil Judge. Kanpur. The matter had to be disposed of by the First Civil Judge, Kanpur, and by no other Court. For this conclusion, the learned Judge relied on the expression "no other Court" appearing in Sub-Sections (2) (3) and (4) of Section 31 of the Act. 5. Section 24, C.P.C. gives general power to the High Court and the District Court to transfer cases. Sub-Section (1) of Section 24, C.P.C. states : ... .. .. ..The District Court may at any stage - (a) Transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same .. .. .. ....". 6. Section 13 of the Civil Courts Act, 1887 deals with jurisdiction of Courts. .. .. ..The District Court may at any stage - (a) Transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same .. .. .. ....". 6. Section 13 of the Civil Courts Act, 1887 deals with jurisdiction of Courts. Sub-Section (2) of Section 13, Civil Courts' Act states : "If the same local jurisdiction is assigned to two or more Civil Judges ... .. the District Judge may assign to each of them such civil business cognizable by the Civil Judge, as……. he thinks fit." 7. These two statutory provisions empower a District Judge to transfer cases from the file of one Civil Judge to the file of another Civil Judge within his judgeship. It was in the exercise of that power that the case was transferred from the file of the First Civil Judge, Kanpur to the file of the First Additional Civil Judge, Kanpur in September 1958. 8. The lower Court thought that such transfer was impossible, in view of Section 31 of the Arbitration Act. It is true that Section 31 of the Arbitration Act emphasises the fact that all questions regarding the validity and existence of an award have to be decided by the Court in which the award has been filed, and by no other Court. But the idea underlying Section 31 of the Arbitration Act is that, questions relating to validity and existence of an award ought not to be agitated in independent or collateral proceedings. This provision does not prevent a District Judge from exercising the power of transfer under S. 24, C.P.C. or under Section 13, Civil Courts' Act, 1887. It is important to note that the decree, dated 26-11-1959 was passed by the First Additional Civil Judge, Kanpur. That very Court was approached by the appellants for execution, of the decree. The learned Judge was wrong in his view that the transfer of the original case to his file in September 1958 was illegal, or the decree dated 26-11-1959 was without jurisdiction. 9. The appeal is allowed, and the order dated 16-3-1963 is set aside. The lower Court is directed to restore the appellant's execution application to its original number and dispose of the application in accordance with law. There would be no order as to costs in this appeal. Appeal allowed.