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Bombay High Court
Govind Narayan Prabhu vs Venkatesh Laxman Kamat on 15 December, 1926
Equivalent citations: (1927) 29 BOMLR 342, 101 Ind Cas 430
Author: K Amberson Marten
Bench: A Marten, Kt., Blackwell


Amberson Marten, Kt., C.J.

1. In our judgment the application in writing in the present case to enforce an award under Section 20 of the Second Schedule to the Civil Procedure Code when numbered and registered as a suit became a suit for the purposes of Order XXXVIII dealing with attachment before judgment. Section 20 provides that the application is to be numbered and registered as a suit. Section 21 enables the Court after the requisite notice has been given to order an award to be filed and to pronounce judgment according to the award.

2. It is argued that because there is a conflict of opinion between the Bombay and Calcutta High Courts as to whether Section 11 of the Civil Procedure Code dealing with res judicata applies to an application to enforce an award under Section 20 of the Second Schedule, that therefore we ought to follow the decisions of the Bombay High Court, and hold that the provisions as to attachment before judgment do not apply to Section 20 any more than the provisions as regards res judicata do.

3. We have accordingly boon referred to a decision of Sir Norman Macleod and Mr. Justice Fawcett in Rajmal Girdharlal v. Maruti Shivram, (1920) I.L.R. 45 Bom, 329, s.c. 22 Bom. L.R. 1377 and to Abdul Aziz v. Chandu Sonu a decision of Sir Norman Macleod and Mr. Justice Coyajee; and on the other hand to a decision of Mr. Justice Teunon and Mr. Justice Richardson in Guru Charan Sirker v. Uma Charan Sirker. (1918) 26 C.W.N. 940 It seems to us however that the question of res judicata is quite different to that of attachment before judgment. In particular, in Abdul Aziz v. Chandu Sonu, the question was whether the matter was res judicata because the proceedings under Section 20 had abated. That to my mind raises quite a different consideration from the one we have to decide. Similarly, supposing an award was set aside on the ground of the misconduct of an arbitrator, it could hardly be said that that was res judicata as regards the merits of the dispute between the parties, apart from the award, and that henceforth neither party could take any proceedings against the other having regard to that particular decision. We do not feel called upon in the present case to give any decision on the question of res judicata any more than we feel obliged to consider the decision of Mr. Justice Heaton and Mr. Justice Rao in Raghavendra v. Gururao as to whether an award relating to a compliment or dignity can be enforced by means of, in effect, Sections 20 and 21 of the 2nd Schedule.

4. In our judgment the learned Judge rightly held that this was a suit for the purposes of Order XXXVIII, and accordingly he had jurisdiction to direct attachment before judgment.

5. On the merits, we think, there was sufficient evidence before the Court to justify the finding that it was a case where an order for attchment should be made.

6. Accordingly, this appeal will be dismissed with costs.

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