ZUMAKLAL MOTIRAM Vs. FULCHAND TARACHAND

JUDGEMENT

(1.) THIS appeal arises out of the dismissal of a darkhast. The original plaintiff? sued in 1906 for partition of property in a suit in which the principal defendant was the father of the present respondents Nos. 2 and3. The plaintiff himself was the father of the present appellant. A decree was given allowing the plaintiff a share in the property of 61/2 annas and the principal defendant a share of 9 1/2 annas, and between then and the year 1919 five darkhasts were filed by the plaintiff, at which satisfaction of various amounts was obtained. In 1920 the three sons of the original plaintiff, who was then dead, brought a darkhast at which commissioners were appointed to divide the rest of the property. On the application of the parties two pleaders and also an umpire were appointed to settle the partition. After they had worked for about a year the parties filed a statement before the arbitrators saying that they had settled the amount remaining due to the heirs of the original plaint- iff at Rs. 22,501 in substitution of the division so far made by the arbitrators and asking that the arbitrators should decide how the amount was to be paid and what future interest should be payable upon it. The principal parties to this darkhast were, as 1 have said, the heirs of the original plaintiff. But there was also one party, Bhagwan, who did not sign the purshis. The matter was placed before the Court, and the Court allowed the arbitrators to make an award which provided for payment in twelve instalments with nine per cent, interest on any unpaid instalments from the date of default. The whole amount was to be recovered at once in the event of four defaults. The Court then passed the following order: "None of the parties having objected to the award, it is ordered to be filed and decree to be drawn accordingly." But no decree was actually drawn since the parties did not pay the stamp. The Court upon that ground ordered: "The darkhast is disposed of. The parties to bear their own costs."

(2.) IN 1926 a darkhast was presented for the recovery of one instalment. The defendants were given time to pay, and it was stated by one of the defendants that one of the heirs of the plaintiff had been satisfied in full. It was admitted that under that instalment a sum of Rs. 1,401 was due, but the total amount claimed by the plaintiff under the instalment was not admitted. That darkhast was dismissed as the plaintiff was not present to show what properties should be attached. IN 1931 another darkhast was presented by the present appellant. That darkhast was dismissed as the plaintiff did not want to proceed with it " for the present". IN 1935 another darkhast was presented for the amount that had been found due (together with interest) in the darkhast of 1931. That also was dismissed as the plaintiff did not want to proceed. On December 4, 1936, the same heir of the original plaintiff presented the darkhast with which we are now dealing. It was for a sum of Rs. 7,500 previously found, to be due, together with interest.

(3.) THE trial Court relied upon the decision in Narayan v. Dhondiba (1936) 38 Bom. L. R, 1303. THEre it was held by a single Judge of this Court that the provisions of sch. II of the Civil Procedure Code not being applicable to execution proceedings, it was not permissible to an executing Court to refer a dispute between the parties in execution of a decree to arbitration under the schedule. A decision upon the same lines was arrived at in T. Wang v. Sana Wangdi (1924) I.L.R. 52 Cal. 559. In that case on an application for execution of a money decree, an objection was taken by the judgment-debtor that the decree was satisfied out of Court, and the matter being referred to arbitration at the instance of the parties an award was thereupon made. It was held that the Court was not competent to refer the matter to arbitration and that the award made was invalid and unenforceable. But the point taken before us in appeal is that the arbitration proceedings resulting in an award are valid as an adjustment of the existing decree. Neither in the Bombay case cited nor in the Calcutta case was the validity of the arbitration proceedings in execution considered from this point of view. In his notes under Order XXIII, Rule 3 (which provides for the adjustment of suits out of Court and the recording of compromises of suits), Sir Dinshah Mulla cites a number of cases which show that all the High Courts with the exception of the Calcutta High Court have treated the submission and the award in arbitration proceedings as an adjustment of a suit under Rule 3 of Order XXIII; and if arbitration proceedings can operate as an adjustment of a suit, there is prima facie no reason why they should not also operate as an adjustment of a decree, even if (as seems to be the case), sch. II of the Civil Procedure Code does not apply to execution proceedings.