MEHTA DIPCHAND VAKHATCHAND Vs. DAVE MADHUSUDAN

JUDGEMENT

(1.) THE dispute in this revision application relates to the computation of advocate's fees, under the Rules of the former Saurashtra High Court, in an application for filing an award under Sections 14 of the Indian Arbitration Act. The applicant filed the said application in the Court of the Civil Judge, Senior Division. Surendrana-Bar, and it was numbered as a suit, being suit No. 193 of 1954. The opponents raised various objections and one of these was that it was not competent to the applicant to file the award in Court and eventually the learned Judge dismissed the application, that is to say, refused to file the award but at the same time he ordered a decree to be drawn up and therein the advocate's fees were computed on an ad valorem basis of the sum in dispute. The applicant then applied to the Court for amending the decree in this regard by computing the advocate's fees under Rule VI of the Appendix to Part I (attached to Rule 109) of the Saurashtra High Court Rules, contending that the application for filing an award was not a suit and therefore did not fall under Rule 1 (a) of the said Appendix but was covered by Rule VI as a case not otherwise provided for. . The learned Judge rejected this plea and held that the application was a suit and the case was therefore governed by Rule 1 (a) and in this view he dismissed the application. It is against this order that the applicant has come in revision.

(2.) NOW Sections 14 of the Arbitration Act, 1940, under which the proceedings for filing an award are to be taken does not say expressly or by necessary implication that these proceedings are a suit, nor are there any other provisions in the Act to suggest that these proceedings are a suit. Under paragraph 20 (2) of Schedule II to the Civil Procedure Code, no doubt an application for filing an award was to be numbered and registered as a suit between the applicant as plaintiff and the other parties as defendants and therefore there was some justification for calling such an application a suit but the Arbitration Act does not contain any corresponding provision. But even in the case of an application under para 20 Sch. II to the Civil Procedure Code, it has been held that it is not a suit. In Rajmal Girdharlal Marwadi v. Maruti Shivram, 22 Bom LR 1377: (AIR 1921 Bom 389) (A) an application had been made by the plaintiff to file an award under paragraph 20 of the Second Schedule of the Civil Procedure Code and that application was numbered as a suit but it was summarily rejected, without trying the validity of the award on the ground that, treated as a suit, it was time-barred. The plaintiff then filed a regular suit to enforce the award and it was objected, to as having been barred by res judieata but the objection was overruled. Macleod C. J. . held that It cannot be said that the proceedings under paras 20 and 21 of the Second Schedule were proceedings in a suit, though for the purposes of convenience they may be numbered and registered as a suit. The judgment then proceeds to consider the question of res judicata and says that no doubt a decree can be made when the Court pronounces a judgment on the award and there being no appeal against it the question whether a suit could be filed to enforce the award would never arise. The order refusing to file an award however is a different matter and it cannot be considered as a decree and therefore the second suit will not be barred by res judicata. The observations relating to the question of res judicata are no doubt not material to the present case; all the same the learned Judges have definitely held that even though the explication might have been numbered and registered as a suit, it could not be said that the proceedings thereof were proceedings in a suit.

(3.) THE Lahore High Court has held in Arura Vir Singh v. Punjab Zaraindara Bank Ltd. , AIR 1940 Lah, 164 (C), that the presentation of an application by the arbitrator' to the Court for filing an award comes within the category of 'civil proceedings' within the meaning of Sections 141 of the Code and therefore, where an award is made against a minor it is incumbent to make a prayer in such an application for a person being appointed the guardian of the minor. Though the actual decision of that case is not material to the present case, the ruling docs lay down tile principle that such applications are mere civil proceedings and not suits.