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1985 DIGILAW 13 (PAT)

PRABHU DAYAL SINGH v. BASUDEO SINGH

1985-01-07

B.P.JHA, S.S.SANDHAWALIA

body1985
JUDGMENT B. P. Jha, J This civil revision petition arises out of an award filed by the Arbitrators. The dispute was referred to the arbitrators by an agreement of all the parties. The award was filed in Court for making it a rule of the Court. An objection was filed by the defendants under Section 30 of the Arbitration Act (hereinafter referred to as the 'Act') for setting aside the award of the arbitrators on various grounds. The award was set aside on the ground that the Punchas misconducted themselves. In appeal the lower Court set aside the order of the trial Court and held that the award was in accordance with law. It is against the appellate order that the present civil revision petition has been filed before the Court. Learned counsel for the petitioners challenges the validity of the agreement for reference on the ground that a leave of the Court under Order XXXII, Rule 7(1) of the Code of Civil Procedure was obtained on behalf of minor plaintiffs before entering into agreement for reference. It is an admitted position that in the present case, before entering into an agreement for reference, prior leave of the Court was not obtained. The award is in favour of the plaintiffs including the minor plaintiffs. The minor plaintiffs are not challenging that the agreement for reference was violative of the provision of Order XXXII, Rules 7(1) of the Code of Civil Procedure. In this view of the matter, the trial Court and the lower appellate Court rejected the argument advanced on behalf of the learned counsel for petitioners. In this connection the learned counsel for the opposite parties made reference to the provision of Order XXXII, Rules 7(2) of the Code of Civil Procedure which runs as follows : "Any such agreement or compromise entered not without the leave of the Court so recorded shall be voidable against all parties other than the minor." A reference was also made to the decision of the Supreme Court in Kaushalya Devi and others v. Baijnath Sayal (deceased) and others. ( AIR 1961 SC 790 ) In that case, the. Supreme Court interpreted Order XXXII, Rule 7(2) of the Code of Civil Procedure. ( AIR 1961 SC 790 ) In that case, the. Supreme Court interpreted Order XXXII, Rule 7(2) of the Code of Civil Procedure. It has been held by the Supreme Court : (1) that any such agreement or compromise entered into without the leave of the Court so recorded shall be voidable against all parties other than the minors, (2) that the impugned agreement can be avoided by the minor against the parties who are major and that it cannot be avoided by the parties who are major against the minor; and (3) that the agreement is voidable and not void. It is voidable at the instance of the minor and at the instance of any other party. In other words, the agreement for reference can be challenged by the minor, and not by the parties who are major, The agreement for reference in the present case is not in accordance with the provision of Order XXXII, Rule 7(1) of the Code of Civil Procedure. It is being challenged by the defendant No. 1, who is a major. It is not being challenged by the minor plaintiffs. In view of the provision of Order XXXII, 7(2) of the Code Civil Procedure, the challenge made by defendant No. 1 to the agreement for reference is not maintainable. Hence the Courts below were right in rejecting the submissions made on behalf of the Petitioners. Learned counsel for the petitioners also challenged the findings of fact arrived at by the lower appellate Court. In a civil revision petition, a party cannot challenge the finding of facts arrived at by the lower appellate Court. The trial Court set aside the award on the ground that the Punchas had misconducted themselves. This order was set by the lower appellate Court considering the evidence on the record. The appellate Court has the power to set aside the finding of facts arrived at the trial Court after considering the materials on the record. The lower appellate Court considered all the materials on the record and was right in setting aside the finding of facts arrived at by the trial Court. Hence I shall not interfere with the finding of facts arrived at by the lower appellate Court that the Punchas had not misconducted themselves and that the Punchas did hold deliberations. In a civil revision petition, counsel for the petitioner can argue only about jurisdiction error. Hence I shall not interfere with the finding of facts arrived at by the lower appellate Court that the Punchas had not misconducted themselves and that the Punchas did hold deliberations. In a civil revision petition, counsel for the petitioner can argue only about jurisdiction error. In the present case, learned counsel for the petitioners did not argue on the question of jurisdictional error. A party is not entitled to raise the question of fact in a civil revision petition. Hence I reject the second contention raised by the counsel for the petitioners. In the result, the civil revision petition is dismissed but without any costs. I agree.