NARENDRA KUMAR v. UPENDRA KUMAR — 1989 DIGILAW 113 (ORI)

A. K. PADHI, J. ( 1 ) THE petitioner in this revision challenges the order dated 22-12-1984 passed by the learned Subordinate Judge, Jaipur refusing to recall the order dated 10-3-1981. ( 2 ) THE brief facts of the case are as follows : the petitioner and opposite parties, who are co-sharers, agreed on 8-1-1978 to partition the suit properties by private arbitrators. Misc. Case No. 56 of 1979 was filed for extension of time. On 24-9-1979, the agreement was filed in the Court and on 17-11-1979 the Court extended the time for filing the arbitration award. On 2-1-1980 the award was submitted to Court. Title Suit No. 20 of 1980 was registered to make the award a rule of the Court on 18-2-1980. In the meantime on 15-2-1980 the petitioner filed an objection challenging the award. Petitioner was arrayed as the plaintiff and the other co-sharers were arryed as defendants. On 27-6-1980, the mother guardian, defendant No. 7, sought permission to represent and conduct the case on behalf of the minor defendants 3 to 6. On 7-8-1980 defendants 2 to 7 filed their written statement. Defendant No. 7, the mother guardian filed a written statement on behalf of the minors praying therein to dismiss the objection of the plaintiff and to make the award a rule of the Court. On 9-3-1981 a compromise petition for acceptance of the award was filed by the petitioner and defendant No. 2. In the said petition it was stated that the difference between the parties has been resolved and they admit the award, and prayed the Court to make the award a rule of the Court. On 10-3-1981 the order making the award, a rule of the Court is as follows : "in view of the compromise effected by the parties as per the compromise petition dt. 9-3-81, the Award filed on 2-1-80 by Arbitrators is accepted. The suit be decreed in terms of the Award and the Award be made part of the decree. " on 9-4-1981, the petition filed a petition under Section 151. C. P. C. to recall the order dated 10-3-1981. The trial Court passed the impugned, order by giving the finding that since the decree is appealable the petition under Section 151, C. P. C. is not maintainable. " on 9-4-1981, the petition filed a petition under Section 151. C. P. C. to recall the order dated 10-3-1981. The trial Court passed the impugned, order by giving the finding that since the decree is appealable the petition under Section 151, C. P. C. is not maintainable. ( 3 ) THE learned advocate for the petitioner submitted that the decree passed on compromise is illegal as - (A) One out of the seven named arbitrators had died before passing of the award; (b) During the pendency of the arbitration proceeding the disputed properties came under the Consolidation operation, hence the arbitrators had lost jurisdiction to partition the properties; (c) The compromise petition having not been signed by all the parties could not have been acted upon by the Court; (d) The learned trial Court did not comply with the provisions of Order 32, Rule 7, C. P. C. though some of the defendants were minors; and (e) As the award has been made a rule of Court and a decree has been passed on compromise suit being barred and there being no provision for appeal against such decree a petition under Section 151, C. P. C. was maintainable. The trial Court holding that the petition under Section 151, C. P. C. was not maintainable is an order without jurisdiction. ( 4 ) THE learned advocate for the opposite parties submitted that - (A) The order dated 10-3-1981 is not a compromise decree as envisaged under Order 23, Rule 3, C. P. C. The petitioner alone had filed objection to the award and the compromise petition in fact was a petition for withdrawing the objection. ( 4 ) THE learned advocate for the opposite parties submitted that - (A) The order dated 10-3-1981 is not a compromise decree as envisaged under Order 23, Rule 3, C. P. C. The petitioner alone had filed objection to the award and the compromise petition in fact was a petition for withdrawing the objection. The decree which has been passed is an award which has been made a rule of the Court and the only mode to challenge it is by way of an appeal under the Arbitration Act; (b) No notification having been filed to prove the disputed properties had come under the consolidation operation, the Court had no jurisdiction to take such averments into consideration; (c) One of the arbitrators had died before the Arbitrators entered into reference and all the parties having submitted to the jurisdiction of the rest of the Arbitrators - none can challenge the same; (d) The mother guardian had entered appearance in the suit on behalf of the minors and had filed written statement in which she had prayed to make the award a rule of the Court. Under such circumstances there was no violation of the provisions of Order 32, Rule 7, C. P. C. Moreover, as the guardian of the minors has also appeared and supports the decree passed, the others cannot challenge the same; (e) As the petitioner along with opposite party No. 2 had filed the petition to make the award a rule of the Court it is not open for the petitioner to challenge the same; and (f) Since substantial justice has been done by making the award a rule of the Court, it should not be interfered with under Section 115, C. P. C. Out of the aforesaid points, the question as to the maintainability of the application under Section 151 of the Civil Procedure Code and the fact of non-compliance of the provision under Order 32, Rule 7 of the C. P. C. deserved to be considered before going into other questions. ( 5 ) IN AIR 1973 SC 2065 (Prakash Chand Khurana v. Harnam Singh), while considering a case of an award made a rule of the Court on consent, theirlordships observed - ". . . . . . . . . . . We, therefore, see no warrant for the view that the award decree should be treated as a consent decree. . . . . . . . . . . We, therefore, see no warrant for the view that the award decree should be treated as a consent decree. The award of the arbitrator did not get its efficacy by reason of the fact that the parties agreed to it. The award was valid on its own, independently of the decision of the parties not to object to it. On the other hand, the validity of a compromise decree flows from the consent of the parties. . . . . . In the instant case, parties agreed to refer their disputes to arbitration when no suit was pending and the award subsequently became a rule of the Court. "thus the decision of the Supreme Court referred to above is an authority for the conclusion that withdrawal of objection taken to challenge the validity of an award and a decree passed as a consequence making the award a rule of the Court, is not a consent decree at all within the meaning of Order 23, Rule 3 of the C. P. C. The learned counsel for the petitioner has relied on the decisions reported in AIR 1981 Bom 357 (Anant Mahadeo Godbole v. Achut Ganesh Godbole), AIR 1982 Cal 12 (Sri Sri Iswar Gopal Jew v. Bhagwandas Shaw) and AIR 1984 Bom 475 (Deorao v. Devkinandan Bhojraj Chandak) which elucidate the effects of compromise decree passed in a suit and also answer the question as to whether an appeal or separate legal proceeding by way of suit would be maintainable to challenge such a compromise decree. None of those cases deals with the decree of a Court making the award a rule of the Court either by consent of parties or by withdrawal of the objection taken against the award and, therefore, the said decisions are of no assistance to the problem which arises in this case. As already stated under the provisions of the Arbitration Act after the filing of an award in Court any of the parties to the award can challenge the validity or legality of the award under any of the pounds mentioned in Sections 16, 30 and 33 of the Act. Where an objection was filed by any of the parties to the award, the Court is to consider the merits of such objection during trial. Where an objection was filed by any of the parties to the award, the Court is to consider the merits of such objection during trial. If the objection is withdrawn before the matter comes up for trial the Court has no other alternative than to pass a decree making the award a rule of the Court. What happened in this case was that the present petitioner who had taken several objections against the award did not press the same by filing an application in which it was stated that there has been a compromise between him and the other party, as a consequence of which he accepted the award. There has been no adjustment by any agreement or compromise to bring the same within the preview of Order 23, Rule 3 of the C. P. C. Thus this not being a compromise decree, the bar in the C. P. C. for filing of an appeal against such decree would be there. From the a above decision and considering the facts of the case, I am of the opinion that the decree under challenge it an award made. a rule of the Court by consent and can only be challenged under the provisions of the Arbitration Act by way of appeal. ( 6 ) IN AIR 1964 SC 993 (Arjun Singh v. Mohindra Kumar), their Lordships have laid down the law that inherent power of the Courts is not meant for overriding express provision of law. In my opinion, when an appeal has been provided under the Arbitration Act, it was open for the petitioner to file an appeal and hence the petition under Section 151, C. P. C. was not maintainable. ( 7 ) THE next question that arises for consideration in this case is as to whether the decree passed by the Court accepting the award and making the same a rule of the Court has been vitiated by reason of noncompliance of the provisions of Order 32, Rule 7 of the C. P. C. Order 32, Rule 7 of the C. P. C. provides that when a next friend or a guardian representing a minor in a suit entered into an agreement or compromise on behalf of the minor, he must obtain the leave of the Court. The aforesaid provision has practically no application to the facts of the present case inasmuch as there has been no agreement or compromise entered into by the next friend on behalf of the minors. I have already held in the preceding paragraph that the decree which was passed by the learned trial Court is really an award which was made a rule of the Court because of the withdrawal of the objection earlier raised against the award and it was not a compromise decree, as envisaged under Order 23, Rule 3 of C. P. C. Thus the question of obtaining the leave of the Court by the next friend does not at all arise. The consequence is, therefore irresistible that the decree in question cannot be challenged on this ground. 7a. Assuming that the provisions of Order 32, Rule 7, C. P. C. are applicable, the next question arises whether it is open for the petitioner to raise the same. The decision which is relied upon by the petitioner is AIR 1952 Pat 461 , Deo Narayan Singh v. Siabar Singh. In this case a suit had been filed for declaration of title and confirmation of possession and in the alternative for recovery of possession. While the suit was pending, all the parties wanted to refer the matter to Arbitrators. There were some minors among the parties. Permission under Order 32, Rule 7, C. P. C. had not been accorded before referring the matter to Arbitration and the properties were divided under the award. In that context of the matter, his Lordship observed :"in the present case Section 24 could obviously have no application because it was impossible for the Court to refer the matter in dispute between the parties to the reference to arbitration only and continue to proceed with the suit so far as the minors are concerned. Having regard to the nature of the suit itself, it was essential that all the parties to the suit should have joined in the reference, and that leave ought to have been obtained by the natural guardians on behalf of the minors before a valid reference could be made. The learned Subordinate Judge is Appears to have thought that because the reference in the present case was at the instance of the pleaders for the parties, therefore Order 32, Rule 7 of the Code probably had no application. . . The learned Subordinate Judge is Appears to have thought that because the reference in the present case was at the instance of the pleaders for the parties, therefore Order 32, Rule 7 of the Code probably had no application. . . . . . . . . . . . . . . . . . . . . . . In the present case, it has not been shown in the first instance whether the pleaders had the power to refer the matter in dispute to arbitration on behalf of the parties, and Secondly in any case even these pleaders were bound by the provisions of Order 32, Rule 7; their position was no better than that of an agent representing their principals and consequently in the case of minors it was necessary that leave of the Court should have been obtained before any reference could be made. The reference itself being illegal, the whole proceeding which followed thereafter must be held to be illegal. "this decision had been followed in AIR 1955 Pat 277 , Gopal Choudhary v. Sundari. ( 8 ) IN AIR 1957 Pat 121 (Sarju Prasad v. Brijnarain Lal), the question before the Court was that while the suit was pending, the parties wanted to refer the matter to a sole arbitrator. The leave of the Court as required under Order 32, Rule 7, C. P. C. had not been obtained before making the award a rule of the Court though some were minors. The plaintiff petitioner thereafter filed objection to the award under several grounds. One of such grounds being as no permission of the Court had been obtained as required under Order 32, Rule 7 of the C. P. C. the award was illegal. The plaintiff-petitioner was himself adult and consenting party to the reference. Following the decision reported in AIR 1946 PC 72 (Chhabba Lal v. Kallu Lal) and AIR 1956 Mad 89 (A. I. Vr. St. Ramanathan Chettiar v. A. L. Vr. St. The plaintiff-petitioner was himself adult and consenting party to the reference. Following the decision reported in AIR 1946 PC 72 (Chhabba Lal v. Kallu Lal) and AIR 1956 Mad 89 (A. I. Vr. St. Ramanathan Chettiar v. A. L. Vr. St. Veerappa Chettiar) and distinguishing AIR 1952 Pat 461 (supra) and AIR 1955 Pat 277 (supra), his Lordship had laid down the law as follows :"a review of all these authorities, therefore, firmly establishes that an agreement for a reference to arbitration without obtaining leave of the Court, as required by O. 32, R. 7, of the Code of Civil Procedure, where a minor is a party to litigation, will render the reference and all subsequent proceedings founded on that reference invalid only at the option of the minor, and not at the instance of an adult party. . . . . . . . . . . . . . . . . . . "i am in agreement with the ratio of AIR 1957 Pat 121 (supra ). In the present case the petitioner himself was the consenting party to make the award a rule of the Court and he has no right to challenge the same. The guardian for the minors had filed a written statement to make the award a rule of the Court. Besides, the guardians of the minors have filed Title Suit No. 63 of 1982 (which is available from record) praying therein to divide the properties of the minors and give them the shares according to the award which was made a rule of the Court in Title Suit No. 20 of 1980. ( 9 ) REGARDING the averment that due to the death of one of the arbitrators, the rest of the arbitrators had no jurisdiction to pass the award, one, out of the seven named arbitrators had died before the arbitrators had entered into the reference and the rest of the six named arbitrators entered into the reference to whose jurisdiction all the parties Submitted will lead to inference that all parties agreed to arbitrate the matter by the remaining six arbitrators. The submission that award passed by, the rest of the Arbitrators was illegal, has no merit. The submission that award passed by, the rest of the Arbitrators was illegal, has no merit. ( 10 ) AS to whether the arbitration proceeding was not maintainable as the properties had come under Consolidation operation, there was no material on record before the trial Court to give a finding that on commencement of proceeding, the arbitrators had ceased to have jurisdiction. No notification had been filed by any of the parties before the trial Court to prove the fact that any or all of the properties had come under the Consolidation operation. Further, it is well settled that a proceeding abates only on passing of the order by Court. Trial Court was not moved in this respect and no order was passed. This submission has no merit. ( 11 ) REGARDING the compromise petition having not been signed by all parties whether the Court had jurisdiction to pass the decree, the English translation of the relevant portion of the compromise petition - "that we the plaintiff and the defendants have compromised. We admit the award which has been passed on 2-1-80. So we pray that the case may be finalised according to the award. " indicates that by this petition no separate terms were finalised. Only it was a prayer to make the award a rule of the Court. Since earlier all the other defendants had filed written statement to make the award a rule of the Court there was no need for everybody to sign on the petition and the decree cannot be assailed on this ground. ( 12 ) LOOKING from another angle the arbitration award which has been made a rule of the Court also should not be interfered with at the instance of the petitioner who was a party to it since all the other parties including the guardians of the minors on behalf of the minors wanted it to be sustained. Substantial justice has been done and I do not want to exercise the powers under Section 115, C. P. C. This view of mine finds support from AIR 1969 Orissa 28 (Dinamani Dass v. Bimbadhar Padhan) in which his Lordships observed :" It is well settled that the exercise of powers under Sec. 115 is not as a matter of right. It is discretionary with the High Court as the word used is "may". It is discretionary with the High Court as the word used is "may". Even where, the Court acts contrary to law on a question which impinges on the question of jurisdiction the High Court is not bound to interfere if the conduct and the act of the petitioner do not arouse its conscience. . . . . . . . . . . . "in the result, the Civil Revision fails and is dismissed, but in the circumstances of the case without any order as to costs. Revision dismissed. .