MALEK BAVAJI AMARKHAN Vs. BAI SONBAI

JUDGEMENT

(1.) THE petitioners mother Rangbai is one of the three daughters of one Sataji Bhimjikhan; the other two being Hirbai and Ladbai. This Rangbai filed a suit for partition of the estate of her father against the heirs of her aforesaid two sisters. Original defendant No. 1 is the sons son and defendants Nos. 2 to 4 are the sons daughters of the aforesaid Hirbai. Defendant No. 5 is the daughters daughter of Hirbai while defendant No. 6 and 7 are the sons and defendants Nos. 8 and 9 are the daughters of Ladbai. THE plaintiff Rangbai died during the pendency of the suit and therefore the present petitioner was brought on the record as her heir and legal representative. Similarly original defendant No. 1 Amirkhan Salimkhan died during the pendency of the suit and his mother Sonbai and his widow Ajubai and his four daughters Manubai Kasubai Ranbai and Rembai and two sons Fatehmohmad and Hanji were brought on the record as respondents Nos. 1 (a) to 1 (h) respectively It should be noted that defendants Nos. 2 to 9 supported the plaintiff in her claim for partition of the estate. It was only defendant No. 1 Amirkhan who contested the suit in his written statement filed in the trial court. After his death his mother Sonbai who is defendant No. 1 (a) supported the plaintiffs claim after she was brought on the record. It was only defendant No. 1 (b) Ajubai the widow of deceased Amirkhan who contested the suit after the demise of Amirkhan. It should be further noted that in the suit there was an application by the original plaintiff for appointment of Receiver for the estate of Sataji. That application was rejected by the trial court with the result that the plaintiff had gone in appeal against that order before the District Court. Before the appeal reached hearing it appears that there was a compromise between the parties and the appeal was withdrawn on that ground and it was stated by the parties that the compromise would be produced in the trial Court for purposes of getting a decree in terms thereof. When the matter was called out before the trial court after withdrawal of the appeal the plaintiff applied for a decree in terms of the award alleged to have been made by the Arbitrator. Original defendant No. 1 (b) Ajubai filed objections to this application of the original plaintiff. THE trial court rejected this application of the plaintiff as the award was illegal since it was obtained in a pending suit without the intervention of the Court. THE trial court therefore dismissed the application of the plaintiff by its order of July 23 1975 THE plaintiff therefore carried the matter in appeal before the District Court at Surendranagar by his Civil Appeal No. 38 of 1975. THE District Court agreed with the contention of the plaintiff that the trial court has a power to record the compromise under Order XXIII Rule 3 of the Civil Procedure Code eventhough the award might have been obtained in a pending suit without the intervention of the Court. THE learned District Judge however dismissed the appeal of the original plaintiff because in his view Order XXIII Rule 3 of the Civil Procedure Code requires that before a compromise or an adjustment can be accepted in a suit by a Court the same should have been agreed upon and consented to by the parties before the Court. THE learned District Judge was also of the view that inasmuch as no permission was granted under Order XXXII Rule 7 of the Civil Procedure Code to Ajubai the widow of Amirkhan for entering into the alleged compromise on behalf of the minors the same was not legal and binding. In that view of the matter therefore the learned District Judge dismissed the appeal of the plaintiff by his order of July 31 1976 It is this order which has been challenged in this revision before me.

(2.) IT is settled position of law that where in a suit the parties have referred their difference to the arbitration without an order of the Court and an award is made a decree in terms of the award can be passed by the Court under Order 23 Rule 3 of the Civil Procedure Code (Vide: Chanbasappa Gurusbantappa Hiremath v. Basadingayya Gokurmaya Hiremath (1927) 51 I.L.R. 903 and Modi Narandas Chhaganlal v. Jamnadas Maneklal and Another (1969) 10 Guj. L.R. 21G). Mr. Shah learned Advocate for respondents Nos. 1 (b) to 1 (h) does not dispute this proposition of law. Mr. Shah has however tried to support the judgment of the learned District Judge on the ground that under proviso to sec. 47 of the Arbitration Act the Court can accept the compromise only if the consent is given by the parties at the time when the Court is called upon to consider whether the award should be accepted as an adjustment or a compromise. He also supported the view of the learned District Judge that inasmuch as no permission was granted to Ajubai to sign this award as alleged by the plaintiff the agreement if at all there was any is voidable as prescribed under Order 32 Rule 7 (2) of the Civil Precedure Code and since Ajubai avoided the agreement the trial Court was justified in dismissing the application of the petitioner herein who was the original plaintiff

(3.) MR. Shah for the respondents 1(b) to 1(h) urged that there is also another hurdle in the way of the petitioner. According to MR. Shah the award in a pending suit without the intervention of the Court can be recorded as a compromise or adjustment of the suit under Order 23 Rule 3 only if the agreement to refer to the Arbitration by the guardian on behalf of the minor sons is permitted by the Court under Order 32 Rule 7 This view has found favour with the learned District Judge. Order 32 Rule 7 of the Civil Procedure Code provides as under: