Makhan Gope And Anr. vs Prasad Gope on 4 November, 1970

ORDER

N.L. Untwalia, J.

1. This application by defendant respondents in Second Appeal No. 922 of 1966 for review of the Judgment of Mahapatra, J., passed in that appeal on the 18th July. 1968 has arisen under these circumstances. An award is said to have been made by the Panchas in respect of the disputed property. According to the case of the plaintiff opposite party, the dispute between him and the petitioners had been referred to arbitration by an arbitration agreement; an award was made. The opposite party filed Title Suit No. 25 of 1959 for the filing of the award and for a decree in accordance with it. The petitioners objected and asked the court to set aside the award, inter alia, on the ground that they had not entered into any arbitration agreement. The trial court in the first instance accepted their case and dismissed the suit.

On appeal by the opposite party, the case was remitted back to the trial court. After remission, on rehearing, the plaintiff succeeded. The suit was decreed after rejecting the objection of the petitioners in the award. A judgment was passed directing the drawing up of a decree in accordance with the award. The defendants went up in appeal before the lower appellate court. The lower appellate court allowed the appeal, set aside the award and accordingly the judgment directing the passing of a decree upon its basis was also set aside. The plaintiff opposite party came up to this Court in Second Appeal No. 922 of 1966.

2. It would appear from the judgment of Mahapatra, J. in the second appeal that it was argued on behalf of the plaintiff-appellant that in view of the provision of law contained in Section 17 of the Arbitration Act, 1940 (hereinafter called the Act) the appeal filed by the defendants in the lower appellate court was not competent. This argument was rejected by the learned Judge on the ground that the judgment of the lower appellate court consisted of two parts–

one was in regard to the question of the validity of the award and the other as to whether a decree ought to have followed; hence the appeal was competent. Entertaining the second appeal in this Court, however, the learned Judge in the last paragraph of his judgment was pleased to note that the lower appellate court did not consider many facets of the case which, when considered, would not necessarily have resulted in reversal of the final judgment of the trial court. In this view of the matter, the second appeal was allowed and the case was remitted back to the lower appellate court.

3. The only point urged in this civil review application by the learned counsel for the petitioners is that second appeal to this Court was not competent and no prayer was made on behalf of the opposite party to convert the second appeal into a civil revision; even if it could have been converted, the civil revision could not succeed on the grounds on which the second appeal succeeded.

4. In my opinion, the point urged on behalf of the petitioners is well founded and must be accepted as correct. When in a proceeding or a suit an objection is taken that the award is not valid and should be set aside then if a decree is directed to be passed in accordance with the award after rejecting the objection, the judgment and order consist of two parts. One part, as observed by Mahapatra, J., and if I may say with respect, rightly, was an order refusing to set aside the award. Such an order was appealable under Section 39 of the Act but no second appeal is competent from that part of the order. An appeal–either a first appeal or even assuming a second appeal would be competent from the decree passed in accordance with the award only on the grounds mentioned in Section 17 of the Act and on no other ground. In the instant case, the position was that the trial court had refused to set aside the award and passed a decree in accordance with It. The lower appellate court set aside the award and consequently set aside the decree. It is plain that if the award was set aside by the lower appellate court, the decree would automatically go.

In the second appeal filed from the decree the question in respect of the setting aside of the award could not be gone into as second appeal from the order of the lower appellate court was not competent. If in second appeal that portion of the order of the lower appellate court could not be interfered with as was done by his Lordship then the case could not be remitted back to that court for a reconsideration of that matter. In my opinion, the error in regard to the maintainability of the second appeal is so obvious and apparent that I am constrained to allow this civil review and upset the

judgment of the learned Judge passed in the second appeal.

5. Learned counsel for the opposite party submitted that in support of the question that a second appeal in such circumstances was maintainable there is another judgment of the same very learned Judge in Minalal Mundhra v. Smt. Anchi Devi. AIR 1965 Pat 66. That being so, it cannot be said that when the second appeal was entertained by the learned Judge and allowed, any error was committed or in any event an error of the kind was committed, which would justify the allowing of the civil review. I have no difficulty in rejecting this argument. On the special facts of that case it was held that the second appeal was competent as some modification of the award was involved in it and the decree made was not in accordance with the award but was in accordance with the modified award. The question was whether such a decree was a good decree.

The learned Judge had also observed in that case that even if the second appeal was incompetent interference could be made in exercise of revisional powers of this court. The observation of the learned Judge in paragraph 11 of the Judgment to the effect that-

 "If a party wishes to come in appeal against an order refusing to set aside an award or an order modifying or correcting an award, before a decree can be passed in pursuance thereto, he can well take recourse to the provision of Section 39; but when the appeal is against a decree passed, we have to go to Section 41 to determine the forum of an appeal. In that view, a second    appeal    is maintainable
....." 
 

in my opinion, is obiter and, if I may say so with very great respect, is not correct. Innumerable instances can be found of composite orders. Judgments or decrees. A decree may follow in accordance with the award on the basis of the same judgment in which the question of setting aside the award has been discussed and answered against the objector. But merely because a decree follows, the right to appeal under Section 39 of the Act is not extinguished. An appeal would still lie from that portion of the judgment and order by which the court refused to set aside the award and if that appeal is allowed, the decree would automatically go. It may go in an appeal which may be filed from the decree; it is not necessary to take recourse to Section 41 for this. If any appeal is filed under Section 39, the appeal filed from the decree must be confined within the four corners of the scope of Section 17 of the Act.

6. In my considered opinion, therefore, the second appeal was not maintainable In this Court. An apparent and obvious error was committed by allowing the second appeal and remitting back the case to the lower appellate court. If I would have been persuaded to take the view that a Civil revision could be allowed on the grounds mentioned in the Judgment of the learned Judge, even at this stage probably I would have allowed the opposite party to convert the second appeal into a civil revision. But after having read the Judgment of the lower appellate court from which the second appeal was filed and having appreciated the grounds of interference mentioned in the Judgment of the learned Judge as also otherwise, I am definitely of the view that civil revision could not or cannot succeed. If I may say so, I am doubtful even whether the second appeal could be allowed on the grounds mentioned in the Judgment of the learned Judge. But that apart, I am definitely of the view that the second appeal was not competent and it was not nor is it a fit case for interference in a civil revision.

7. The application for review is accordingly allowed, the Judgment of this Court dated the 18th of July, 1968 passed in Second Appeal No. 922 of 1966 is recalled and the second appeal is dismissed but in the circumstances I shall make no order as to cost.