KALKA SINGH Vs. INDRADEO SINGH

JUDGEMENT

(1.) THIS is an application, in revision by the plaintiff against the appellate order of the learned Civil Judge of Azamgarh, setting aside an award.

(2.) THE facts giving rise to this revision briefly stated were these. THE suit had been filed by Kalka Singh and his son Jhuri Singh against Ram Charit-tar Singh and his three sons, Inderdeo Singh, Raj-deo Singh and Shama Singh. During the pendency of the suit reference was made to arbitration and in that arbitration reference Kalka Singh signed for himself and his son Jhuri Singh while defendants 1, 8 and 4 signed in their capacity as defendants. Defendant No. 2, Inderdeo Singh, Was no party to this reference. In this reference a note was made to the effect that Inderdeo Singh be exempted from the reference. THE trial Court, before whom the application was made, sent the case to the arbitration of the person named in the reference. No order of any kind was passed by the Court below in regard to the request to exempt Inderdeo Singh from the reference. An award was made by the Arbitrator and objections were filed to that award by Ram Charittar Singh. Inderdeo Singh, the exempted defendant, preferred no objections to the award. THE trial Court dismissed the objections and directed that the suit be decreed in terms of the award.

(3.) MR. Shambhu Prasad, appearing on behalf of the applicant Kalka Singh has raised three points before me. The first contention of MR. Shambhu Prasad is that it was not open to Inderdeo Singh to raise the question of the validity of the reference at the appellate stage when that question had not been raised by Ram Charittar Singh, his father, in the Court of first instance. MR. Shambhu Prasad further contended in this connection that in an application for setting aside of an award the question of the validity of the reference could not be raised. He relied on two decisions of this Court for this contention of his. The first decision is in the case of Lachmi Narain v. Dirg Bijal Singh, 19 All LJ 32: (AIR 1921 All 397) (A). In this case Piggott and Ryves, JJ., held that under Clause 18 of the second schedule of the Code of Civil Procedure, such a question could not be raised. A similar view was taken by Bajpai, J., in the case of Ganga Singh v. Kr. Jitwar Singh, AIR 1935 All 1014 (B). In my opinion the two cases relied upon by MR. Shambhu Prasad would not be authority for the contention which he has raised for the reason that Sch. II of the old Code of Civil Procedure is no more law as it has been repealed and has now been substituted by the Arbitration Act (Act 10 of 1940). The provisions which are now contained in the Arbitration Act are not exactly the same as the provisions of the II Schedule of the Code of Civil Procedure were. Section 33 of the Arbitration Act had no equivalent in the II Schedule of the Code of Civil Procedure under Section 33 it is competent for a party to an arbitration agreement or any person claiming under him desiring to challenge the existence or validity of an arbitration agreement or an award or to have the effect of either determined by an application to the Court and the Court was bound to decide the question. The objections which were filed by Ram Charittar Singh did generally say that the award was illegal. That, in my opinion, was wide enough plea to include the question that is now being pointedly raised by his son Inderdeo Singh. An Arbitration agreement if it was invalid in law could not culminate in a valid award. I have no hesitation in holding that the objection that was being raised by Ram Charittar Singh and thereafter by his son Inderdeo Singh was legitimately open to them under the provisions of Section 33 of the Arbitration Act,