NAZIR MOHAMED Vs. KASTURCHAND GOMAJI CO

JUDGEMENT

(1.) THIS revn. petn. is against the order of the Subordinate Judge, Chickmagalur in Mis. Appl. no. 4 of 1949-50, confirming the order of the Mansiff Chickmagalur dismissing I. A. No. 6 in O. S. No. 220 of 1947-48 on his file. Thit appln. was filed under Order 23, Rule 3, C. P. G. for recording a compromise said to have bean arrived at between the parties.

(2.) THE pltf. filed a suit for recovery of monies alleged to be due by the deft. THE suit was contested; issues were framed and the case posted for trial THE parties are then said to have referred their dispute in this pending an it to both their respective counsel for decision and the latter appear to have given a decision. THE deft, (sic) thereupon made an appln. I. A. no. 5 for having that decision recorded as amounting to a compromise or settlement of the suit between the parties. THE deft, op-posed the appln. Evidence was recorded thereon and the parties gave varying versions in the matter. THE learned Muniff rightly found on the evidence of their counsel that the parties had unequivocally and unconditionally agreed to abide by their decision. But he held that he could not treat the decision as amounting to a compromise or settlement of the suit coming within Order 23 Rule 3, C. P. C. THE learned Subordinate Judge on appeal has agreed with him on this question of law and the deft, has preferred this revn. petn.

(3.) IN 27 Mys. C. C. R. 215 it has been held that the decision of arbitrators unless accepted by the parties cannot amount to a mutual agreement for purposes of Order 23, Rule 3, C. P. C. and that Order 23, Rule 3 does not contemplate arbitration proceeding as such as amounting to a compromise or settlement. IN 23 Mya. C. C. R. 182 it has been held that if the award of the arbitrators is accepted by both the parties, the agreement to refer plus the award which the parties had accepted would constitute an adjustment of the suit on lawful agreement, but that is not by virtue of the award itself or of its binding character but because the parties have chosen to adopt a decision given by the arbitrators as indicating the mode in which they want their dispute to be adjusted.