SAHADEO Vs. SHANTA PRASAD MISRA

JUDGEMENT

(1.) THIS civil revision has been filed against the order passed by the Addi tional District Judge dismissing the appeal against the order of the trial Court dismissing the defendant's application for deciding the suit in terms of an alleged compromise. In the suit, an application (20-C) was moved on 7-9-1970 by the parties stating that talks of compromise were going on between the par ties and they had already appointed an arbi trator (Panch). It was further stated that as the arbitrator was likely to take some time in giving his award the hearing of the case be adjourned and later on the suit may be decid ed in terms of the award to be given by the arbitrators (Panchon). On 20-10-1970 the de fendant moved an application with a prayer that the suit may be decided in terms of the award given by the arbitrators. The plaintiff filed objections to the award and contended, inter alia, that the arbitrators had misconduct ed themselves as well as the proceedings. When the matter came up before the Court the plaintiff refused to give consent to the decision of the suit in terms of the award.

(2.) AT the hearing of the matter it was contended by the defendant that the award should be treated as a settlement of the dis pute within the meaning of Order 23, Rule 3 of the Code of Civil Procedure and a decree be passed under that provision. The trial Court did not accept the contention because the plaintiff had not given his consent to the decision of the suit in terms of the award. It held that without such consent the dispute could not be deemed to have been settled be tween the parties out of Court. The applica tion was accordingly rejected and the suit was directed to be proceeded with. The defen dant went up in appeal. The appellate Court took the same view as was taken by the trial Court. It also held that the award, not hay ing been made in accordance with the provi sions of the Arbitration Act, could not be given effect to as an award and without the consent of the plaintiff could also not be re garded a compromise within the meaning of Order 23, Rule 3, Civil P. C. The defendant has raised the same pleas in the Revision. According to the learned counsel for the ap plicant the parties should be deemed to have settled their dispute out of Court in terms of the award within the meaning of Order 23, Rule 3 of the Code of Civil Procedure. The submission is that by stating in the applica tion (20-C) D/- 7-9- 70 that the suit may finally be decided in terms of the award that may be given later on, the parties should be deemed to have settled their dispute by a compromise in terms of the award that was to follow. There is no merit in the contention. 1974 All/4 H G-13

(3.) THE application dated 7-9-1970 shows that the parties were contemplating a compromise and for that purpose had agreed to refer the dispute to arbitration and after the award was to be given, the suit was to be decided in terms of the award. If the law did not permit the Court to decide the suit in terms of the award obtained in a manner not provided by the Arbitration Act, mere agreement of the parties that the suit be decid ed in terms of the award will not confer any power on the Court to decide the suit in terms of the award. The suit can be decided in terms of such an award only by treating it as a compromise or adjustment, but that too cannot be done unless both the parties consent thereto. This requirement about con sent is embodied in the proviso to Section 47 of the Arbitration Act. The agreement men tioned in application No. 20-C could not amount to the consent to the award within the meaning of the proviso to Section 47 of the Arbitration Act, or even otherwise, be cause the consent had to be a consent to the decision contained in the award and the same could not possibly be given before the award had been made. Consent contemplated by the proviso to Section 47 is the consent given after the award to the terms of the award and not the prior consent to be bound by the award. This was also the view taken by this Court in the case of AIR 1955 All 353 (supra). The award, not being consented to by the plaintiff after it was given by the arbi trators, could not be deemed to record the agreement or compromise between the parties and could not amount to a settlement of the dispute through compromise for the purpose :of Order 23, Rule 3, Civil P. C.