MODI NARANDAS CHHAGANLAL Vs. JAMNADAS MANEKLAL

JUDGEMENT

(1.) This appeal arises out of the dismissal of Civil Appeal No. 317 of 1958 by the learned Assistant Judge Baroda. The appellant before me is the original plaintiff and he filed a suit against the two respondents before me to recover an amount of Rs. 5120.00 on the basis of a promissory note. While the matter was pending in the trial Court the parties agreed to refer the matter to an arbitrator. The reference to the arbitrator was not made by the Court but it was a reference privately made by the parties themselves. The reference to the arbitrator was made on 16th September 1957 and the arbitrator gave an award on the same day. The learned Assistant Judge has found as a matter of fact that all the parties to the suit have accepted the award after it was made by the arbitrator. After the parties had accepted the award they did not immediately go to the Court and intimate to the Court about the making of an award or their acceptance thereof. The proceedings in the trial Court continued until the issues were framed Thereafter the defendants in the suit made an application to the Court pointing out that the matter was referred by the parties privately to an arbitrator and that the arbitrator has given an award and that the parties have accepted the award. The defendants contended before the trial Court that the suit has been adjusted or compromised between the parties according to the award and therefore a compromise may be recorded and a decree passed in terms thereof. This contention was based by the defendants on the provisions of Order 23 Rule 3 of the Civil Procedure Code.

(2.) The plaintiff objected to the Court accepting the award as a compromise and passing a decree in terms of the award. The trial Court negatived his objection and passed decree In terms of the compromise represented by the award which was accepted by the parties. The plaintiff took an appeal to the District Court at Baroda and the learned Assistant Judge who heard the appeal came to the conclusion that the parties had accepted the award after it was made and on that basis he came to the conclusion that the award represents a compromise or an adjustment of the suit by the parties. He therefore upheld the decree made by the trial Court and dismissed the appeal of the plaintiff.

(3.) In this Second Appeal Mr. M. M. Patel who appears for the appellant contended that mere acceptance of the award after it was made is not a sufficient compliance with the provisions of the proviso to sec. 47 of the Indian Arbitration Act 1940 (hereinafter referred to as the Act ) and that there should be an acceptance of the award by the plaintiff before the trial Court when the contention raised by the defendants was considered by it. Mr. Patel urged that as the plaintiff has not given such a consent when the trial Court considered the contention of the defendants the trial Court had no jurisdiction to pass a decree in terms of the award.