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Calcutta High Court
Joy Prokash Lall And Anr. vs Sheo Golam Singh And Ors. on 12 September, 1884
Equivalent citations: (1885) ILR 11 Cal 37
Author: R Garth
Bench: R Garth, Beverley

JUDGMENT

Richard Garth, C.J.

1. These suits were brought on the following allegations:

In mehal No. 2286 of the Saran Towjee, mauza Bissumbhurpur alias Aphur represents a 2-annas kolum or share, and of this 6 pies belonged to Manessur Sahai and Mussammat Luchmi Koer. A private partition of the mauza having been made, the said share comprised among other lands 11 biggahs of zerat land in Aphur and 9 biggahs in Putti Esrawan.

2. Appeal No. 666 relates to the 9 biggahs in Putti Esrawan; and the plaintiff’s allege that they purchased these 9 biggahs (with other lands) in certain execution proceedings, and applied to the Collector to have their names recorded as fractional co-sharers in the mehal, and this suit is brought in consequence of the Collector’s refusal to so register them as fractional co-sharers.

3. Appeal No. 667 relates to 1 biggah out of the 11 biggahs in mauza Aphur, and the plaintiffs’ allegation is, that they purchased this 1 biggah in certain other execution proceedings, but that the Collector has refused to register them as fractional co-sharers in the mehal in respect of this 1 biggah.

4. The defendants 1 to 8 are admittedly the purchasers of the 6-pie share of Manessur Sahai and Mussammat Luchmi Koer, after excluding the lands of Putti Esrawan.

5. The defendants 9 to 17 are the other co-sharers in the 2-annas kolum; they were added as defendants on the objection of defendants 1 to 8, in suit No. 112 on 8th February 1882, and in Suit No. 190 on 17th August 1881. In this latter case they filed a written statement on 16th September 1881 in which they supported the plaintiff’s’ allegations, and urged that they had been improperly made defendants.

6. On the application of the plaintiffs and defendants 1 to 8, both suits were referred to arbitration on the 15th February 1882. The defendants 9 to 17 admittedly did not join in this application.

7. The arbitrators found that the plaintiffs, as the proprietors of specific plots of land within the mehal, were not entitled to be registered as fractional sharers therein, and the first Court gave a decree in accordance with this award, dismissing the plaintiffs’ suit.

8. The plaintiffs having preferred an appeal, the District Judge held that under the concluding portion of Section 522 of the Code of Civil Procedure, no appeal would lie, and he accordingly rejected the application.

9. It is contended here, that the order of the District Judge was wrong. It is said that the defendants 9 to 17 not having agreed to refer the matter to arbitration, and not having been parties to the arbitration proceedings, those proceedings were irregular and without jurisdiction, and the award invalid; and that being so, the decree passed in accordance with the invalid award was not such a decree as is referred to in Section 522 of the Code of Civil Procedure.

10. The question in this case is, whether under Section 522 of the Code of Civil Procedure, an appeal lies against a decree given in accordance with an award. It has been held both by this Court and by the Allahabad Court in Debendra Nath Shaw v. Aubboy Churn Bagchi I.L.R. 9 Cal. 905 and Lachman Dass v. Brijpal I.L.R. 6 All. 174 that the answer to this question must depend upon whether the award upon which the decree was based was a valid and legal award. We see no reason to differ from this view of the law. As therefore in this case the question was whether the award was valid, it is clear that the lower Appellate Court ought to have tried the appeals. But it would be obviously useless to remand the case to that Court; we think that as a matter of law the judgment of the first Court should stand.

11. Upon this point certain cases have been cited before us, in which it was held that the award was good, notwithstanding that some of the parties had not joined in the reference 5 W.R. 130 : 6 W.R. 25 : 10 W.K. 463 : 4 C.L.R. 65.

12. We are not quite satisfied with those decisions, and we think that upon some future occasion it may be right to review them. But until a suitable occasion arises, we must be guided by their authority, and we are the more disposed to follow them in this instance, because the justice of the case is so clearly in favour of that view.

13. The plaintiffs are here attempting to set aside an award, and a judgment founded upon that award, on account of a technical mistake to which, if it is a mistake at all, they have themselves been parties. They themselves were the means of excluding the defendants 9 to 17 from the arbitration proceedings, and they never thought of taking the point, upon which they now rely, until the award was made againt them.

14. So far as we can see, the award is a perfectly fair one and the plaintiffs have, as a matter of justice, no reason to complain.

15. Both appeals are dismissed with costs.


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